People v. Hyland , 981 N.E.2d 414 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Hyland, 2012 IL App (1st) 110966Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KRAIG HYLAND, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-11-0966
Filed November 21, 2012
Rehearing denied December 20, 2012
Held Defendant’s convictions for unlawful use of a weapon by a felon and
(Note: This syllabus unlawful possession of a firearm by a street gang member were reversed
constitutes no part of outright on the ground that the State failed to show the arresting officers
the opinion of the court had probable cause to justify defendant’s warrantless arrest, regardless of
but has been prepared the fact that defendant ran from the police.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-2232(01); the
Review Hon. Evelyn B. Clay, Judge, presiding.
Judgment Reversed; sentences vacated.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Gilbert C. Lenz, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Jon Walters, Assistant State’s Attorneys, of counsel),
for the People.
Panel JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Salone specially concurred, with opinion, joined by
Justice Neville.
OPINION
¶1 Following a jury trial, defendant Kraig Hyland was convicted of one count of unlawful
use of a weapon by a felon and one count of unlawful possession of a firearm by a street gang
member. He was sentenced to concurrent prison terms of three years on each count.
Defendant raises multiple issues on appeal. First, defendant contends that the trial court erred
in denying his motion to quash his arrest and suppress evidence where the State failed to
show that the arresting officers possessed knowledge of facts supporting probable cause to
justify an arrest without a warrant. Defendant further contends that his convictions must be
vacated because the statutes creating the offenses at issue violate the constitutional right to
bear arms. Alternatively, where both of his convictions arose from the same physical act,
defendant contends that his conviction for the less serious offense must be vacated under the
one-act, one-crime doctrine. Finally, defendant contends that trial counsel was ineffective
for: (1) failing to file a motion to sever the two counts, which allowed the jury to be
inundated with unfairly prejudicial gang evidence that was only relevant to one of the counts;
(2) failing to move for a mistrial or object to testimony that allowed the jury to infer that he
had committed a previously uncharged murder; and (3) failing to object to the State’s
improper bolstering of a witness’s credibility during closing rebuttal. Defendant also asks
this court to amend the mittimus to properly reflect credit against his sentence for time
served. For the reasons that follow, we reverse.
¶2 BACKGROUND
¶3 On January 13, 2010, defendant was arrested and charged with one count of unlawful use
of a weapon by a felon and one count of unlawful possession of a firearm by a street gang
member. At the hearing on defendant’s motion to quash his arrest and suppress evidence,
defendant testified that he worked as a barber at a shop located at 217 East 71st Street in
Chicago. On the morning of January 13, defendant testified that he was in the barbershop
with two other barbers and three clients. Two detectives knocked on the door of the
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barbershop. The door to the shop was kept locked and people had to either be “buzzed” in
electronically or the door had to be opened manually. Defendant testified that one of the
clients was smoking marijuana so they had to spray the shop down first before they opened
the door for the detectives. Defendant stated that they thought the detectives were there to
investigate a robbery that had occurred at the barbershop on December 30. Instead, one of
the detectives pointed at him and said that he had violated an order of protection. The
detective told him that they would have to take him in and he could discuss the matter with
a judge the following day. Defendant put his hands behind his back and the detective placed
handcuffs on him. His codefendant objected and the detectives stated that they were going
to take the codefendant into custody for aiding and abetting. The detectives called for a
transport car and, when it arrived, placed both men in the backseat of the vehicle to be
transported to the police station. As the vehicle pulled away, defendant saw the detectives
return to the barbershop. Defendant stated that after he had been at the police station for 45
minutes, the detectives came in with two guns and said, “Look what we got here, that’s why
y’all didn’t let us in the shop.”
¶4 On cross-examination, defendant stated that he had left the shop at 9 a.m. to walk to the
corner store, but that was the only time he was outside the shop that morning. Defendant
further testified that when the detectives brought the guns to the police station, he told them
they were lying and one of the detectives told him it was defendant’s word against the
detective’s word. Defendant stated that he did not have a gun in his possession and was not
aware of any guns in the barbershop.
¶5 Officer Sledge testified that he was with his partner, Officer Boyd, in an unmarked squad
car on January 13. Two other officers were in another unmarked car and were
communicating with them via radio. Officer Sledge stated they saw defendant and
codefendant standing on the sidewalk outside the barbershop. There was a dumpster at the
curb in front of the building. Officer Sledge and his partner exited their vehicle and
approached the men, because they knew there was an investigative alert for defendant on a
violation of an order of protection. The other two officers were also on the scene and exited
their vehicle. As the officers approached, the two men looked in their direction and ran
toward the barbershop, pushed the door open, and went inside. Officer Sledge followed them
into the shop, cornered the codefendant in the back of the shop, and performed a protective
search. The other officers attended to defendant. Officer Sledge testified that, prior to
performing the protective search, he had not observed any weapon on the codefendant.
Officer Sledge also testified that the shop was closed and under foreclosure at the time of the
incident.
¶6 Officer Sena testified that he was working with his partner, Officer Lara, on January 13.
Along with Officers Sledge and Boyd, Officer Sena saw defendant and codefendant standing
in front of the building at 217 East 71st Street. Officer Sena testified that there was no
dumpster in front of the building. When they saw the officers, the two men ran into the
building and Officer Sena ran after them. He detained defendant in the rear of the shop.
Officer Sena testified that the officers were doing a follow-up investigation of defendant
because he had an investigative alert for a violation of an order of protection. Officer Sena
placed defendant in custody, performed a custodial search, and retrieved a semiautomatic
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pistol from defendant’s front waistband. Officer Sena stated that he placed defendant in
custody because there was probable cause to arrest him for the investigative alert. Officer
Sena further testified that there were other investigative alerts that day, but he had only
printed out the alert for defendant. He stated that defendant’s alert caught his attention
because he had had prior “run-ins” with defendant and knew that the barbershop was one of
his “hangout spots.” Officer Sena also stated that the barbershop was not a legal place of
business because it did not have a permit.
¶7 The trial court found that the officers were credible and that the only instance of
contradiction, regarding whether or not there was a dumpster outside the shop, was not
germane to the issue of whether a lawful arrest occurred. The trial court found that both
defendants were lawfully arrested given the totality of the circumstances. Therefore, the
motion to quash the arrest and suppress evidence was denied. Counsel for defendant
subsequently learned that the codefendant filed a motion to reconsider and the trial court
reversed its earlier ruling with respect to the codefendant and granted the motion to quash
his arrest and suppress evidence. However, the trial court explained that counsel for
defendant had not timely filed a motion to reconsider and the case against defendant
proceeded to trial.
¶8 At trial, Officer Sena testified that on January 13, he was working as a tactical officer.
He went to the district office to check for investigative warrants and alerts for the district. He
obtained an investigative alert for defendant and printed out a photograph. He then notified
his partner and two other officers and the four officers proceeded to 217 East 71st Street in
two separate vehicles. They arrived at the location shortly before noon. Officer Sena
observed defendant standing in front of the location with another individual. Defendant was
dressed in a T-shirt and was not wearing a coat. When Officer Sena stopped his vehicle in
front of the location, the two men ran into the building. Officer Sena and the other officers
ran into the building in pursuit of defendant through the unlocked door. Officer Sena caught
up with defendant just past the first room in the building, placed him in custody because of
the investigative alert, and performed a custodial search. A 9-millimeter weapon was
recovered from defendant’s front waistband. The officers then called for a transport vehicle
and defendant was taken to the police station. Officer Sena testified that there was a back
door to the building, but that neither of the men attempted to get out the back door. On cross-
examination, Officer Sena testified that when he first saw defendant outside the barbershop,
he had a view of defendant from the front and did not see a gun in his waistband.
¶9 Officer Lara testified that he was working with Officer Sena on January 13. They went
to 217 East 71st Street to look for defendant. When they arrived at that location, they saw
defendant and codefendant outside on the sidewalk. Officer Lara testified that it was cold that
day and that defendant was wearing some type of coat or outer garment. When the officers
approached, the two men ran inside the building. The officers followed them into the
building and Officer Lara and his partner placed defendant in custody and performed a
custodial search, during which Officer Sena recovered a 9-millimeter handgun from
defendant’s front waistband. Defendant was transported to the police station and Officers
Lara and Sena questioned him there after reading him his Miranda rights. Defendant
indicated that he understood his rights and that he wished to speak with the officers. Officer
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Lara asked defendant why he had a gun and defendant replied that he had it for protection
because they had been robbed two weeks earlier. Officer Lara then asked defendant if he was
a member of a gang and defendant said he was a “70s Babies GD.” Officer Lara understood
that to mean that defendant was from a section of the Gangster Disciples street gang
comprised of members who were born in the 1970s. Officer Lara asked defendant what he
did for the gang and defendant replied that he was a foot soldier. Officer Lara explained that
a foot soldier is a lower ranking gang member who sells narcotics.
¶ 10 After being asked whether he had any gang tattoos, defendant showed the officers two
tattoos on his stomach and left forearm. Officer Lara was also shown a photo of defendant
in which he identified two teardrop tattoos below defendant’s right eye. He explained that,
in his experience, teardrops under the eye indicate that a member of the gang has been killed.
If the teardrop is filled in, it indicates that the gang has retaliated against whoever killed their
fellow gang member. If the teardrop is open, it indicates that there has been no retaliation for
the killing.
¶ 11 Officer Sledge was accepted as an expert witness in the area of street gang activities on
the basis of his training in that area and his experience related to his assigned duties as an
officer. Officer Sledge stated that there was no process for getting out of a gang and
explained that a gang member simply might not be active. Officer Sledge testified that when
a gang member has a teardrop tattoo, it means that one of his fellow gang members got hurt,
shot or killed. If the teardrop is colored in, it means the person with the tattoo is the one
“who did retribution for a slain gang member.” At the end of his testimony, defense counsel
asked Officer Sledge to verify that the fact that a person has tattoos does not mean that
person is a gang member and Officer Sledge agreed. Defense counsel then asked, “A person
could have absolved himself from a gang at any time, is that correct?” Officer Sledge
answered, “That’s correct.” Officer Sledge was asked on redirect how easy it was to get out
of a gang and he stated that it was not easy, especially if the person lives in the same area and
associates with the same people, but that a person could actually remove himself from the
gang if he wanted to.
¶ 12 The parties stipulated that defendant had a prior felony conviction. Defendant then called
his former codefendant, Ricky Montgomery. Montgomery testified that on the date in
question, he was at the barbershop located at 217 East 71st Street with defendant. Some men
came to the door and he realized they were police officers when he saw their badges.
Montgomery testified that the officers knocked on the door, because the door was kept
locked. When they realized the men were police officers, Montgomery stated, they opened
the back door and sprayed something to mask odors because they had been smoking
marijuana in the shop. Then one of the other barbers opened the door for the police.
Montgomery asked the officers if they were there to investigate the robbery that had occurred
at the shop and the officers said no, they had an investigative alert for defendant. The officers
then proceeded to pat defendant down. Montgomery testified that the officers did not recover
a gun from defendant. One of the officers started looking around the shop and Montgomery
told him that if he had a warrant for defendant but not for the shop, he could not search the
shop. The officer told Montgomery he was a “smart ass” and after a verbal exchange, the
officer handcuffed Montgomery and said he was taking Montgomery to jail for aiding and
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abetting. Montgomery and defendant were placed in a transport vehicle and taken to the
police station by different officers. The original two officers were joined by some other
officers and they all went back into the shop. The arresting officers arrived at the police
station about 45 minutes later. One of the officers came into the interview room with two
guns and said, “Look what we found. This is what took y’all so long to open the door.”
Montgomery told the officers he had never seen the guns before.
¶ 13 Defendant testified that he was released from the penitentiary in 2002 and that, prior to
his release, he attended a class because he wanted to stop drinking and doing drugs and he
wanted to renounce his gang membership. Defendant testified that on January 13, 2010, he
was in the barbershop. Apart from a trip to the store in the morning, defendant did not go
outside the shop that day. He testified that it was cold and blowing and there was an icy rain.
Around noon, two men came to the door of the shop and knocked. He thought they looked
like police officers because one of the men was Caucasian and it was unusual to see a white
person walking around in that neighborhood. The other barbers had been smoking marijuana,
so he told them to spray the shop down and open the back door to let some air pass through
the shop. The front door was locked, so someone had to go to the door and open it to let the
officers in.
¶ 14 When the officers entered the shop, the occupants asked them if they had heard anything
about a robbery that had occurred at the shop earlier. The officers said no, but asked which
person was named Hyland. Defendant stated that he was Hyland and one of the officers told
him that he had “an invest alert.” The officer explained that the alert was for a violation of
an order of protection and defendant asked how he had violated the order. The officer said
defendant had called someone who had an order of protection against him for a domestic
dispute. The officers told defendant they would have to take him to the police station.
Defendant told the other barbers not to worry about him and asked them to call his mother
and tell her that the police were taking him to the station, that he did not know what he had
done, and that he had not called anyone in violation of the order. The officers placed him in
handcuffs and started looking through the drawers of his booth, and then walked over to the
other booths in the shop and continued to search. Montgomery told the officers they could
not search the shop, and one of the officers said, “We got a little smart ass right here.”
Montgomery again told them they could not search the shop, and the officer asked
Montgomery why he was interfering in their investigation. Montgomery told them they did
not have a search warrant and they could not search the shop. The officer then grabbed
Montgomery and handcuffed him. Officer Sena asked them what took them so long to open
the door. Defendant acknowledged that they got sarcastic with the officers because they
already knew they were going to jail anyway, so they told the officers that they could not
search the shop no matter what the occupants had been doing before they opened the door.
The officers then called for a transport vehicle, placed defendant and Montgomery inside,
and they were transported to the police station.
¶ 15 Approximately 45 minutes later, Officers Sena and Lara arrived at the police station. One
of the officers had two guns in his hands and told defendant one of the guns was his. The
officers asked defendant if he was a member of a gang and defendant told them that he was
when he was younger but he was no longer affiliated with a gang. Defendant further testified
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that there was a dumpster in front of the shop and he did not see the officers pull up outside
the shop. Defendant testified that he was previously a member of the Gangster Disciples, but
that he did not know what “70s babies” were. He explained that the tattoos on his face
represented his father and his grandfather, who had both been killed. He further explained
that the tears were red for blood, that he lost his blood, and that his father and grandfather
were the only people he had in his life.
¶ 16 During closing arguments, the State highlighted the testimony of Officer Sledge and
stated that the jury heard about the tattoos defendant had and what those tattoos meant. On
rebuttal, the State told the jury that Officer Sena was the only officer who knew the defendant
and there was no way he could have gotten the other officers to go along with a frame up
because “[n]o Chicago police officer is going to risk his career and frame this guy.” The jury
found defendant guilty of unlawful use of a weapon by a felon and possession of a firearm
by a street gang member.
¶ 17 Defendant filed a motion for a new trial, arguing, inter alia, that the motion to quash his
arrest and suppress evidence should have been granted. The trial court denied the motion. At
the sentencing hearing, defendant addressed the court and explained that he had dropped all
gang involvement after his imprisonment for residential burglary 10 years earlier and had
been working since then as a barber to provide for his children. He again stated that the
police had fabricated the charges against him and asked for the court’s understanding. The
trial court stated that it was impressed by defendant’s remarks and believed he was sincere
and was well on the road to rehabilitation. The trial court further stated that after defendant
paid his debt to society and returned to his work as a barber, he needed to make sure nobody
in the barbershop was smoking marijuana or doing anything illegal in his presence, and that
he could never be around firearms again. The trial court said that it was impressed with
defendant’s determination to leave the gang life behind him and was going to “cut [him]
some slack” on the sentence. The trial court stated that because it believed every word
defendant had said, it would give him the lowest possible sentence of three years. Defendant
timely filed this appeal.
¶ 18 ANALYSIS
¶ 19 Defendant first contends that the trial court erred in denying his motion to quash his
arrest and suppress evidence where the State failed to show that the arresting officers
possessed knowledge of facts supporting probable cause to arrest. Defendant argues that the
State failed to meet its burden at the suppression hearing where none of the arresting officers
had personal knowledge of the facts supporting probable cause and the State did not call an
officer who did.
¶ 20 A motion to suppress involves mixed questions of law and fact. People v. Pitman, 211
Ill. 2d 502, 512 (2004). Because the trial court is in a superior position to determine the
credibility of witnesses, findings of historical fact will be upheld on review unless they are
against the manifest weight of the evidence. Id. However, a reviewing court is also free to
undertake an independent assessment of the facts in relation to the issues presented. Id. The
ultimate question of whether the evidence should be suppressed is reviewed de novo. Id.; see
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also People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
¶ 21 In the case sub judice, defendant has not challenged the trial court’s findings of fact at
the hearing on the motion to suppress. Instead, defendant argues that once he challenged the
warrantless arrest, because the arresting officers did not have personal knowledge of the facts
supporting probable cause, it was the State’s burden to produce evidence at the suppression
hearing from someone who possessed such knowledge. We agree.
¶ 22 On a motion to suppress evidence, the defendant generally bears the burden of showing
that the search and seizure were unlawful. See, e.g., People v. Janis, 139 Ill. 2d 300, 308
(1990); People v. Neal, 109 Ill. 2d 216, 218 (1985); People v. Hoskins, 101 Ill. 2d 209, 212
(1984). However, because warrantless searches are per se unreasonable, if the defendant
challenges the warrantless search and demonstrates that he was doing nothing unusual at the
time of the search, the State has the burden to demonstrate that the search was legally
justified. People v. Lawson, 298 Ill. App. 3d 997, 1001 (1998). Moreover, while an arrest
may be based on information of which the arresting officer does not have personal
knowledge, when the State attempts to justify a warrantless arrest on that basis, it must
establish that the information relied on was based upon facts sufficient to establish probable
cause to make an arrest. Id. at 1001-02 (and cases cited therein).
¶ 23 Testimony from both officers who testified at the hearing on the motion to suppress
established that the officers approached defendant on the basis of an investigative alert that
indicated that there was probable cause for his arrest. Officer Sena testified that he took
defendant into custody based on an investigative alert for a violation of an order of
protection, performed a custodial search, and found the weapon. Neither officer testified to
any personal knowledge of the facts underlying the issuance of the investigative alert.
¶ 24 The Lawson court cites to numerous cases in which this court and our supreme court
have held that while tips, radio bulletins, or official police communications may be relied
upon by arresting officers, the State must demonstrate that the information relied upon was
sufficient to establish probable cause to arrest the defendant. Id. (citing People v. Tisler, 103
Ill. 2d 226, 237 (1984), People v. Bascom, 286 Ill. App. 3d 124, 127-28 (1997), People v.
Aguilar, 286 Ill. App. 3d 493, 496 (1997), People v. Crane, 244 Ill. App. 3d 721, 724-25
(1993), People v. Rimmer, 132 Ill. App. 3d 107, 113 (1985), and People v. Crowell, 94 Ill.
App. 3d 48, 50 (1981)). These cases rely on Whiteley v. Warden, 401 U.S. 560 (1971), where
the arresting officer relied on a radio bulletin advising officers that a warrant had been issued
for the defendant’s arrest. The Supreme Court stated:
“Certainly police officers called upon to aid other officers in executing arrest warrants
are entitled to assume that the officers requesting aid offered the magistrate the
information requisite to support an independent judicial assessment of probable cause.
Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be
insulated from challenge by the decision of the instigating officer to rely on fellow
officers to make the arrest.” Id. at 568.
In a subsequent case, the Supreme Court clarified that “Whiteley 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
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possessed probable cause to make the arrest.” (Emphasis in original.) United States v.
Hensley, 469 U.S. 221, 231 (1985).
¶ 25 At the hearing on the motion to suppress, the State only presented evidence that the
arresting officers relied on the investigative alert as the basis for taking defendant into
custody and performing a custodial search. The State presented no evidence that the
underlying facts of the investigative alert established probable cause to arrest defendant,
either from the officer who issued the investigative alert or from the individual who obtained
the protective order that defendant allegedly violated. Thus, the trial court erred in denying
defendant’s motion to quash arrest and suppress evidence.
¶ 26 The State contends that defendant forfeited this issue because he did not raise this
specific argument in the proceedings below, and also because defendant acknowledged that
the police informed him that they had an investigative alert for his violation of an order of
protection. These arguments are without merit. First, defendant’s testimony that the police
officers informed him that he was being arrested for a violation of a protective order is not
evidence that the underlying facts of the investigative alert were sufficient to support
probable cause for his arrest. Moreover, defendant’s actual testimony was that the detectives
told him he violated the order by calling someone, and he told the other people in the shop
that he did not know what he had done and that he had not called anyone in violation of the
order. Thus, far from verifying that the facts underlying the investigative alert were sufficient
to support probable cause, defendant’s testimony highlights the very reason why it was so
critical for the State to independently establish that those facts were indeed sufficient.
¶ 27 In order to preserve an issue for appellate review, a defendant must object at trial and
raise the issue in a posttrial motion. People v. Ward, 154 Ill. 2d 272, 293 (1992); People v.
Coleman, 227 Ill. 2d 426, 433 (2008). It is not necessary for the defendant’s objection to state
identical grounds for contesting the issue. See People v. Mohr, 228 Ill. 2d 53, 65 (2008)
(noting that the defendant is not required to object to a jury instruction on identical grounds
but is only required to object before and after trial to preserve the issue for review); Coleman,
227 Ill. 2d at 433 (reviewing suppression of evidence issue where defendant argued the same
issue under a different theory before the trial court and also raised it in a posttrial motion).
¶ 28 Defendant filed a motion to quash arrest and suppress evidence, arguing that the officers
did not have probable cause to arrest him. In his posttrial motion, defendant argued that the
trial court erred in denying his motion to suppress. Therefore, this issue has been sufficiently
preserved for review. Moreover, as previously discussed, when a defendant challenges a
warrantless arrest, the burden shifts to the State to establish that the underlying facts were
sufficient to establish probable cause for arrest. We have found no authority for the State’s
contention that the burden only shifts if the defendant specifically challenges the facts
underlying the police communication relied upon by the arresting officers.
¶ 29 The State devotes the bulk of its argument to explaining that the police officers did not
conduct a custodial search of defendant but rather conducted a proper “Terry stop and frisk.”
See Terry v. Ohio, 392 U.S. 1, 22 (1968). We reject this argument on multiple grounds. First,
defendant correctly notes that, by failing to argue the theory of a Terry stop at trial, the State
has forfeited this argument on review. See People v. Adams, 131 Ill. 2d 387, 396 (1989). At
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the hearing on the motion to suppress and at trial, the State argued that the officers had
probable cause to arrest defendant on the basis of the investigative alert and that the weapon
was recovered during a custodial search. At no point during the trial did the State argue that
this was a Terry stop and frisk. Thus, the State has forfeited this argument on review.
¶ 30 Even if the State had not forfeited this argument, we are not persuaded that the search of
defendant was justified under Terry, or even that the officers’ interaction with defendant
constituted a valid Terry encounter. First, the State has not established that the police officers
conducted a valid Terry stop. Under appropriate circumstances, a police officer is entitled
to briefly detain a person for questioning without probable cause if the officer reasonably
believes that the person has committed, or is about to commit, a crime. Terry, 392 U.S. at 22.
Such limited investigatory detentions are permissible only upon a reasonable suspicion based
upon specific and articulable facts that the person has committed, or is about to commit, a
crime. Id. at 21-22.
¶ 31 The only evidence of a reasonable belief by the officers that defendant committed a crime
was the investigative alert for the violation of the order of protection. However, this merely
established that other officers might possess facts sufficient to support probable cause to
actually arrest defendant; there was no evidence presented that established a basis for an
investigative detention. Officer Sena testified that he knew defendant and had printed his
photo. He went to the barbershop because he knew there was a strong possibility that he
would find defendant there and could arrest him. Officer Sledge corroborated this testimony,
stating that the officers went to the barbershop looking for defendant on the basis of a
violation of an order of protection. There was no evidence presented at trial that the officers’
initial encounter with defendant was merely for investigative purposes. Moreover, in relying
on the investigative alert as the basis for the Terry stop, the State faces the same problem it
faced in relying on the alert to establish probable cause. As this court noted in Lawson, even
for a Terry stop, the State must establish “enough indicia of reliability [of information on
which an arresting officer relies] to justify the officer’s forcible stop.” (Internal quotation
marks omitted.) Lawson, 298 Ill. App. 3d at 1004. The State, however, did not present any
evidence from which it might be inferred that the officer who issued the investigative alert
possessed facts which would have justified the stop. See id.
¶ 32 The State further suggests that the fact that defendant ran as soon as he saw the officers
was sufficient to justify a Terry stop. It is well settled that flight alone is not sufficient to
establish reasonable suspicion that a person has committed, or is about to commit, a crime.
People v. Harris, 2011 IL App (1st) 103382, ¶ 12 (citing Illinois v. Wardlow, 528 U.S. 119,
124-25 (2000)). However, unprovoked flight together with an individual’s presence in an
area of expected criminal activity could potentially be sufficient. Id. The State’s attempt to
argue that the second factor was met here is not supported by the evidence. While crimes
certainly were committed in the area of the barbershop, as evidenced by testimony that there
had been a robbery at the shop a few weeks earlier, the police officers arrived at the shop in
the middle of the day, not in response to reports of any suspected criminal activity or any
suspicious behavior on the part of defendant, but specifically looking for defendant. This is
not sufficient to justify a Terry stop on the basis of defendant’s flight in a “high crime area.”
Thus, the State has not established that the situation involving defendant was a valid Terry
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encounter.
¶ 33 Moreover, even if the State had shown that the officers conducted a valid Terry stop, it
has not shown any justification for a Terry frisk. When an officer conducting a Terry stop
reasonably believes that the individual he is investigating is armed and dangerous, the officer
may conduct a pat-down search to determine whether the individual is carrying a weapon.
People v. Sorenson, 196 Ill. 2d 425, 432 (2001). However, this search, commonly referred
to as a “frisk,” is only valid where the officer conducting the frisk can point to specific,
articulable facts which, when taken together with natural inferences, would cause a
reasonably prudent person to believe that his safety or that of others was in danger. People
v. Flowers, 179 Ill. 2d 257, 264 (1997).
¶ 34 There is no evidence in the record that the officer conducting the frisk ever pointed to
specific, articulable facts that would cause him to think defendant was armed and dangerous.
Indeed, Officer Sena testified at trial that he had a clear view of the front of defendant outside
the barbershop, that defendant was dressed in a T-shirt and was not wearing a coat, and that
he did not see a weapon in defendant’s waistband. On appeal, the State argues that a
reasonably prudent officer would have believed defendant was armed and dangerous because
he immediately fled with his codefendant upon seeing the officers, and because the
investigative alert was based on a violation of an order of protection in a domestic dispute.
Apart from the fact that the officer who conducted the frisk never articulated such a belief,
the State’s arguments have no merit. Flight is certainly not an indication that a person is
armed and dangerous, whether that flight is by one person alone or two together. Testimony
established that the officers did not see weapons on either defendant or codefendant before
they were searched. Moreover, the only evidence at trial related to details of the violation of
the protective order was provided by defendant himself, who testified that the officers told
him that he had violated the protective order by calling someone he was not supposed to call.
Such information would hardly suggest that defendant could be a potential danger to the
officers. Therefore, even if the State had not waived this argument, there is no evidence that
the police officers conducted a valid Terry stop or frisk.
¶ 35 Finally, the State argues in the alternative that the police officers had probable cause to
arrest defendant for obstruction of justice because they had an investigative alert for his arrest
and he initially fled from them. This argument is circular and fails for the same reason we
have already concluded that the trial court erred in denying the motion to suppress. In order
to establish that the arrest was legally justifiable, the State had to provide evidence that the
facts underlying the investigative alert were sufficient to support probable cause for an arrest.
In the absence of such evidence to support probable cause on the basis of the investigative
alert, the fact that the defendant fled from the police does not provide probable cause for an
arrest on obstruction of justice grounds.
¶ 36 For the foregoing reasons, we reverse defendant’s convictions on the grounds that the
trial court erred in denying defendant’s motion to quash his arrest and suppress evidence.
Moreover, because neither conviction can stand in the absence of any weapon, this cause will
not be remanded. See People v. Surles, 2011 IL App (1st) 100068, ¶ 42 (and cases cited
therein). Because we are reversing defendant’s convictions outright, we need not reach the
remaining issues on appeal.
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¶ 37 Reversed; sentences vacated.
¶ 38 PRESIDING JUSTICE SALONE, specially concurring.
¶ 39 I agree with the majority’s finding of no probable cause in this case, which originated in
Chicago, and question the legality of the Chicago police department’s (CPD) policy of
issuing investigative alerts under any circumstances. In doing so, I acknowledge this issue
has yet to be addressed in any detail.
¶ 40 Our research has failed to find a constitutional or statutory provision that authorizes the
creation or issuance of an investigative alert. During oral argument, the State confirmed our
research. Although proponents of the investigative alert practice argue it is acceptable to
detain persons of interest, I find the practice to be an impermissible warrantless arrest of a
suspect.
¶ 41 Arrest pursuant to warrant is the preferred constitutional (U.S. Const., amend. IV; Ill.
Const. 1970, art. I, § 6) and statutory (725 ILCS 5/107-2(c) (West 2010)) method of taking
an individual into custody, with certain exceptions. See Wong Sun v. United States, 371 U.S.
471, 481-82 (1963) (“The arrest warrant procedure serves to insure that the deliberate,
impartial judgment of a judicial officer will be interposed between the citizen and the police,
to assess the weight and credibility of the information which the complaining officer adduces
as probable cause.”); see also Beck v. Ohio, 379 U.S. 89, 96 (1964) (“An arrest without a
warrant bypasses the safeguards provided by an objective predetermination of probable
cause, and substitutes instead the far less reliable procedure on an after-the-event justification
for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of
hindsight judgment.”); see also United States v. Leon, 468 U.S. 897, 913-14 (1984)
(“Because a search warrant ‘provides the detached scrutiny of a neutral magistrate, which is
a more reliable safeguard against improper searches than the hurried judgment of a law
enforcement officer “engaged in the often competitive enterprise of ferreting out crime,” ’
United States v. Chadwick, 433 U.S. 1, 9 (1977) (quoting Johnson v. United States, 333 U.S.
10, 14 (1948)), we have expressed a strong preference for warrants and declared that ‘in a
doubtful or marginal case a search under a warrant may be sustainable where without one it
would fall.’ United States v. Ventresca, 380 U.S. 102, 106 (1965).”).
¶ 42 Supporters of investigative alerts as a practice argue that individuals who raise questions
surrounding their use can file the appropriate pleadings to make their concerns known to the
court. This position assumes the practice is constitutionally and statutorily permissible and
invites litigation that can be substantially reduced if, instead, the prevailing practice is that
an investigating officer seek an arrest warrant from a neutral member of the judiciary.
Supporters further contend that investigative alerts save valuable police resources and lead
to more efficient investigations and, therefore, the practice is an acceptable exception to the
preferred method of arrest by warrant. I am not persuaded this justifies the practice.
¶ 43 The detention of an individual because of an investigative alert is generally triggered by
police contact in an unrelated matter, i.e., a traffic stop or field interview. The law allows a
police officer to question an individual concerning a specific police matter. However, the law
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is clear that questioning is limited to a “reasonable period of time” and that the detention is
to occur at the scene of the stop. Under section 107-14 of the Code of Criminal Procedure
of 1963, “[a] peace officer, after having identified himself as a peace officer, may stop any
person in a public place for a reasonable period of time when the officer reasonably infers
from the circumstances that the person is committing, is about to commit or has committed
an offense as defined in Section 102-15 of this Code, and may demand the name and address
of the person and an explanation of his actions. Such detention and temporary questioning
will be conducted in the vicinity of where the person was stopped.” (Emphases added.) 725
ILCS 5/107-14 (West 2010). I find the reasonable suspicion that justified the stop of the
individual on a matter unrelated to the underlying investigative alert is not enough to support
detention of that individual for as long as the alert anticipates, which includes being
transported to the police department and being held there for questioning, where there are
other legal alternatives, i.e. seeking an arrest warrant, available to achieve the same result.
¶ 44 I take judicial notice of the CPD’s special orders. Ill. R. Evid. 201(c) (eff. Jan. 1, 2011).
The CPD has dedicated training materials and formalized procedures to instruct officers on
the practice of investigative alerts. The extensive resources the CPD has expended to outline
how an investigative alert must be processed and implemented, specifically its requirement
that a supervisor review and approve each alert, shows the subjective nature of such an
undertaking and the CPD’s recognition that it is granting its officers a substantial power. The
goal of an investigative alert, detaining an individual for questioning, is essentially the same
as that of an arrest warrant, without the constitutional safeguards. Departure from
constitutional safeguards to investigate a crime was not warranted in this case, nor is it in any
case.
¶ 45 Under CPD Special Order S04-16, investigative alerts fall into two categories,
“Investigative alert/Probable Cause to Arrest” and “Investigative alert/No Probable Cause
to Arrest.” Despite the terminology being used, practically speaking, an investigative alert
has been elevated to the status of an arrest warrant, without the safeguards provided by a
judicial determination of probable cause. Just as the term “Terry stop” is now known as a
“field interview” and use of the word “suspect” has been replaced by “a person of interest,”
the term “investigative alert” (note, “investigative alert” was proceeded by the term “stop
order”), is the successful re-characterization of “arrest warrant.” With an investigative alert,
the CPD has institutionalized an end run around the warrant requirement in the Constitution
by (1) permitting a police officer, instead of a judge, to find probable cause and (2)
commanding:
“Officers who run name checks on individuals who have an Investigative alert/Probable
Cause to Arrest on file will:
a. take the subject into custody if not already in custody
b. process the arrestee in accordance with the procedures outlined in the General
Order entitled ‘Processing Persons Under Department Control.’ Indicate on the Arrest
Report (CPD-11.420) that the arrestee is the subject of an Investigative alert/Probable
Cause to Arrest.” (Emphases added.) Chicago Police Department Special Order S04-16
(eff. Mar. 6, 2001).
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There is no mention of the constitutional rights of the arrestee in custody based on an
executed investigative alert. There is no reference to the need for judicial review of the
officer’s finding of probable cause in CPD’s directives. In its glossary1, CPD states:
“[An] Investigative alert/Probable Cause to Arrest, identifies an individual that is wanted
by the Bureau of Investigative Services (BIS) investigative personnel concerning a
specific crime, and while an arrest warrant has not been issued, there is probable cause
for an arrest.” (Emphasis added.)
Special Order S04-16 also provides, “Supervisors will approve or reject investigative alert
requests in CHRIS [Criminal History Records Information System].” Chicago Police
Department Special Order S04-16 (eff. Mar. 6, 2001). The unit investigative alert file is
audited each police period (28 days) to ensure investigative alert requests on file are canceled
when the subject of the alert has been apprehended or the investigative alert is no longer
needed.
¶ 46 Noticeably absent from these provisions is any reference to judicial review. The thought
that any summons to take a subject into custody is merely reviewed every police period,
without any mention of judicial intervention, cannot stand. Police officers cannot grant
themselves unbridled power to take into custody persons without the benefit of an arrest
warrant, save the exceptional circumstances already present in case law. However, that is
exactly what the investigative alert process does.
¶ 47 A finding of probable cause is within the sole authority of a neutral and detached judge
after review of an affidavit or hearing. There is no guarantee of such a finding. Judges do not
always agree on probable cause. “Reasonable minds frequently may differ on the question
whether a particular affidavit establishes probable cause, and we have thus concluded that
the preference for warrants is most appropriately effectuated by according ‘great deference’
to a magistrate’s determination.” Leon, 468 U.S. at 914 (citing Spinelli v. United States, 393
U.S. 410, 419 (1969), overruled on other grounds by Illinois v. Gates, 462 U.S. 213 (1983)).
The issuing officer of an investigative alert is not neutral and detached, nor a member of the
judiciary. Moreover, any information the issuing officer had is imputed to his supervisor,
meaning the supervisor is also not neutral nor detached.
¶ 48 In the present case, the supervisor approved the investigative alert issued for defendant
and, thus, presumably found probable cause. The trial court agreed. This panel unanimously
held no probable cause for arrest was present. It is not a given that the facts and
circumstances will warrant a finding of probable cause. See People v. Geier, 407 Ill. App.
3d 553 (2011) (this court reversed the trial court’s order quashing the defendant’s arrest for
driving under the influence and suppressing the evidence from the traffic stop, holding the
police officer who observed the defendant’s vehicle cross the fog line had probable cause to
stop the defendant’s vehicle). For this reason, I find the practice of investigative alerts
particularly troubling. An individual picked up on an investigative alert is likely not to
understand the legal difference between such a detention and one effectuated from an arrest
warrant. If the individual does not challenge the detention, and all the evidence gathered from
1
See http://directives.chicagopolice.org/directives (last visited Nov. 8, 2012).
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that point on, on probable cause grounds, we are allowing a practice with no legal basis to
become quasi-law merely because it is common practice.
¶ 49 Because there will undoubtably be cases in which a subsequent finding of probable cause
by a neutral judge justifies the arrest effectuated under an investigative alert, proponents
argue the issue of probable cause should be fleshed out in court during litigation. However,
this is a classic example of the end justifying the means. Instead, I want to promote better law
enforcement by encouraging the police to seek an arrest warrant or proceeding under the
current exceptions to the warrant requirement. By shortchanging an individual’s
constitutional protections to get a potential suspect to the police station for questioning, we
are not looking at the big picture; vital evidence may be suppressed. See People v. Garcia,
94 Ill. App. 3d 940 (1981) (in reversing defendant’s conviction for aggravated kidnaping and
murder, this court held the record failed to support the existence of probable cause to arrest
defendant and, therefore, his arrest should have been quashed, and all evidence including
statements and the corpus delicti which were fruit thereof should have been suppressed).
¶ 50 Under the current policy, if a police officer finds an individual with an outstanding
investigative alert, the individual is taken into custody, which often means handcuffed, and
brought in for questioning. When an individual is detained through an investigative alert, that
individual is essentially under arrest for fourth amendment purposes. Evidence gathered or
learned as a result of a warrantless arrest is often successfully contested in court on fourth
amendment grounds. Requiring that officer to instead present evidence to a neutral member
of the judiciary to be sure there is sufficient probable cause, rather than proceed under an
investigative alert, would allow the police, where probable cause is lacking, the opportunity
to gather more evidence rather than make an illegal arrest that would result in suppression
of any evidence seized.
¶ 51 Allowing the practice of investigative alerts to continue to side-step judicial review gives
arrest warrant power to the police, and constitutes an impermissible violation of the suspect’s
constitutional rights. Here, as in the majority of the cases, the information underlying the
investigative alert did not occur contemporaneously with the questioning and detention of
the suspect and, therefore, the officers had time to comply with the law. Although the law
permits warrantless arrests based on the officer having a reasonable belief the individual is
committing or has committed an offense, the preferred method is through an arrest warrant.
A neutral judge or magistrate must issue a felony arrest warrant. If 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. For these reasons, the practice of
circumventing the warrant requirement in the Constitution by issuing investigative alerts as
a means of taking a potential suspect in to custody must cease.
¶ 52 JUSTICE NEVILLE joins in this special concurrence.
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