People v. Clark

2024 IL 127838

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 127838)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ANGELO CLARK, Appellant.

Opinion filed December 19, 2024.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Holder White, Cunningham, Rochford, and

O’Brien concurred in the judgment and opinion.

Justice Neville dissented, with opinion.

OPINION

¶1 The State, by indictment, charged defendant Angelo Clark with multiple counts

of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012)) and

aggravated battery (id. § 12-3.05(e)(1)), arising out of a gang-related shooting that

seriously injured two people at an outdoor gathering held on July 19, 2013.

Defendant moved to quash his arrest, which was effected pursuant to an

investigative alert—a computer notification to officers in the field that detectives

had found probable cause for defendant’s arrest—issued by the Chicago Police

Department. Following defendant’s arrest, he made an inculpatory statement. After

a hearing, the circuit court denied defendant’s motion to quash arrest and suppress

his statement. Defendant did not contest the denial in the circuit court.

¶2 Thereafter, following a 2017 jury trial in the circuit court of Cook County,

defendant was convicted, under an accountability theory, of two counts of

aggravated battery with a firearm (id.) and was initially sentenced to two

consecutive terms of 23 years in prison. Upon an amended motion to reconsider his

sentence, the circuit court reduced the aggregate sentence from 46 years to 32 years

in prison.

¶3 Defendant appealed, and the Appellate Court, First District, affirmed

defendant’s conviction and sentence. 2021 IL App (1st) 180523-U. We allowed

defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2021)), and

for the following reasons, we affirm the appellate court’s judgment.

¶4 BACKGROUND

¶5 On July 19, 2013, at approximately 7:30 p.m., two people attending an outdoor

event, a 6-year-old girl and a 52-year-old woman, were shot and injured. Shortly

after the shooting, police pulled over Cragg Hardaway a few blocks from the crime

scene after his vehicle was identified as possibly having been involved. He was

arrested the next day, and on the following morning, July 21, 2013, he gave a video-

recorded statement. In his statement, he told detectives that, shortly after he heard

gunshots on the day of the shooting, he encountered DeAndre Butler, who got in

Hardaway’s car and told him that some younger men had shot at someone. Three

young men—Terrence Lynom, Ladon Barker, and defendant—then ran to

Hardaway’s car, got in, and told Butler they had committed the shooting and

believed Lynom had successfully killed someone. Hardaway later testified to the

grand jury that he encountered defendant again about a half hour later, when

defendant reported to Butler that he had disposed of the guns. After Hardaway’s

video-recorded statement, the detectives issued investigative alerts notifying

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officers that there was probable cause to arrest Lynom, Barker, and defendant. On

July 22, 2013, between noon and 3:30 p.m., officers arrested defendant.

¶6 Before trial, defendant filed a motion to quash arrest, contending that he was

arrested without probable cause or a valid arrest warrant. At the hearing on the

motion, Lashan Clark, defendant’s mother, testified that at approximately 3 p.m. on

July 22, 2013, she was in her mother’s home when two police officers arrived

looking for defendant, who was not there. Ms. Clark testified that she voluntarily

accompanied the officers to her sister’s South Lafayette Avenue residence, where

she said defendant was living. Ms. Clark testified that, after she and the officers

arrived at her sister’s residence, she told the officers to wait outside, she entered the

back door, and she saw defendant sitting at the kitchen table. Ms. Clark testified

that she told defendant that the police were there “about a little girl” and that it was

serious and that defendant “was getting mad” because the police were there. Ms.

Clark testified that, while she and defendant were talking, the officers entered the

house and threatened to tase defendant. Ms. Clark testified that the officers then

choked defendant, threw him against the wall, and handcuffed him. Ms. Clark

testified that the officers then escorted defendant from the home.

¶7 Chicago police officer Patrick Kinney 1 testified that on July 22, 2013, he and

his partner, Chicago police officer Kevin O’Neill, went to defendant’s

grandmother’s house after receiving an investigative alert that there was probable

cause to arrest defendant for the shooting of two victims. Officer Kinney believed

that the basis for the probable cause for the investigative alert was that defendant

had been “positively identified as being the shooter where two victims were shot.”

¶8 After learning that there was an investigative alert with probable cause to arrest

defendant, Kinney performed a database search on defendant’s name and went to

the residence of the first address that appeared. Kinney testified that, at that

residence, they encountered Ms. Clark, who was “extremely” cooperative,

informed them that defendant lived with her sister, and accompanied the officers to

her sister’s house at South Lafayette Avenue. Kinney testified that, when they

arrived at the sister’s address, Kinney approached the back of the residence, O’Neill

1

The report of proceedings in the record spells Officer Kinney’s name as “Kenny,” but the

parties below, the arrest report contained in the common-law record, and the appellate court spell

his name “Kinney.”

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approached the front, and Ms. Clark waited in the back of the police car in front of

the residence.

¶9 Kinney testified that he knocked on the door and a male adult in his twenties

answered it. Kinney introduced himself to the young man and explained that he was

looking for defendant, whom he had probable cause to arrest. Kinney testified that,

although the man did not verbally invite Kinney inside, the man opened the door,

moved to the side, and pointed to a back bedroom where Kinney saw defendant.

Kinney, who remained outside the residence, told defendant that there was a

probable cause investigatory alert for his arrest and that the detectives wanted to

speak to him, and Kinney asked defendant to accompany him to the police station.

Defendant said, “Okay, let me get some clothes,” after which Kinney stepped inside

the residence and defendant put on his clothes. Kinney testified that he entered into

the house as defendant gathered his clothing “to have eyes on him prior” to arresting

him because he did not “know what he was going to grab.” Kinney testified that

defendant was very cooperative, defendant exited the home, and he placed

defendant under arrest and escorted him to the police station.

¶ 10 The circuit court denied defendant’s motion. In doing so, the circuit court found

that Kinney was a “believable” and “compelling” witness and that Ms. Clark’s

testimony was biased and “utterly without any credibility.” The court stated that it

agreed with defense counsel that the existence of an investigative alert with

probable cause to arrest does not alone provide authorization for an officer to enter

a home to effect an arrest. The circuit court noted, however, that Kinney’s eventual

entry occurred after defendant had “already agreed to accompany” the officers and

it was not “to effect arrest but to effect and facilitate his accompaniment, which

[defendant] [had] already agreed to do.”

¶ 11 After defendant’s arrest, he submitted a written statement to police, wherein he

stated that he was a member of the Goon Town gang, rivals of the 10-4Ls gang,

and that he and about 10 fellow gang members, including Lynom and Barker,

decided they would shoot some 10-4Ls. Lynom and Barker volunteered to shoot,

and defendant volunteered to go along with them to make sure they were alright.

Once Barker was armed with a 9-millimeter gun and Lynom with a .40-caliber gun,

they walked through the alley, and Barker and Lynom opened fire while defendant

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stayed near the alley’s entrance. The three then ran back down the alley and escaped

in Hardaway’s car.

¶ 12 At defendant’s jury trial, the State proceeded on three counts of aggravated

battery and five counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-

1(a)(1) (West 2012)). Codefendants, Lynom and Barker, were tried separately and

are not parties to this appeal. At defendant’s trial, the State presented evidence that

defendant was the lookout for the two shooters and was therefore accountable for

their actions. The jury returned guilty verdicts on two counts of aggravated battery

with a firearm (id. § 12-3.05(e)(1)) under an accountability theory. The circuit court

declared a mistrial on the remaining counts of attempted first degree murder and

the sentence enhancement for the use of a firearm, on which the jury could not reach

a unanimous verdict.

¶ 13 In December 2017, at the sentencing hearing, the circuit court heard the victims’

statements about their lasting injuries and defendant’s statement in allocution that

he was “no longer that reckless 17[-]year[-]old kid” and was “truly sorry” that “the

offense [he] was charged with” had “caused two innocent people pain and suffering

every night plus [his] family.” Defendant’s statement in allocution indicated that

he started getting into trouble when he returned to Chicago from Wisconsin, his

surroundings led him to “the street life,” and he never planned “to be part of some

nonsense.” Defendant’s statement indicated that he was “past [his] adolescent state

of mind,” “a mature adult now 21 years old,” and “would have been dead if [he]

[were] free due to [his] adolescent state of mind.” Defendant’s statement indicated

that he was part of a spiritual program and wanted to attend college.

¶ 14 The circuit court also received a presentence investigation report (PSI), which

confirmed that defendant was 17 at the time of the shooting, revealed that he had

been adjudicated delinquent for aggravated assault a month before the shooting,

and provided information about defendant’s social, family, and psychological

history. The PSI revealed that, when defendant was 15 years old, he suffered from

depression, attempted suicide by hanging himself, and was hospitalized for two

weeks. The PSI revealed that defendant denied being a gang member or being

involved in any gang-related criminal activity, even though he had “Goon Town”

tattooed on the knuckles of both hands.

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¶ 15 In mitigation, defense counsel argued that defendant was “just a child,” never

had the opportunity to go to high school because he was working when he was 15

years old, and “was only a little over 10 years older than the victim.” Counsel stated

that defendant had a “tough life” and grew up without his dad in his life. Counsel

stated that defendant “did not have direction” and had “no one to show him the

way,” and counsel requested that “be factored in greatly” for sentencing.

¶ 16 Before sentencing defendant, the court explained that it had considered “[t]he

evidence presented at trial,” the PSI (which the court had “reviewed in its entirety”),

“the evidence offered in aggravation and mitigation,” and the statutory factors in

aggravation and mitigation, as well as arguments of counsel, the victim impact

statements, and “[d]efendant’s allocution” (which “provide[d] [the court] with

some degree of optimism”). After noting the “extreme gravity” of the conduct for

which defendant had been found accountable and defendant’s eligibility for a 6- to

30-year sentence on each count of aggravated battery with a firearm, the circuit

court sentenced him to 46 years in prison, which included two consecutive

sentences of 23 years. The circuit court denied defendant’s immediate oral motion

to reconsider based on his youth, explaining that it was “mindful of [his] youth” but

that other factors, including the “extremely aggravating” facts that the offenses

resulted from a “concerted effort” by defendant and his fellow gang members,

supported the sentence.

¶ 17 In January 2018, defendant filed an amended motion to reconsider sentence,

arguing that 46 years was excessive in light of defendant’s background, young age,

and the nature of his participation in the offense, including that he had not fired a

gun during the shooting. On February 16, 2018, at the hearing on the amended

motion to reconsider, defendant argued that the 46-year sentence was excessive and

“akin to a life sentence” because he was a 17-year-old boy at the time of the offense,

he was not the shooter, and he was found to be guilty only of aggravated battery

with a firearm, not attempted murder. The circuit court reiterated that it was

“mindful of the fact that he is a young person” and, after “tak[ing] that into further

account,” reduced defendant’s sentence to 32 years total, with 16 years in prison on

each count of aggravated battery with a firearm. After the circuit court reduced

defendant’s sentence, the court noted that defendant “absented himself from the

courtroom” and “pushed the officer aside as he attempted to exit.” The circuit court

found that defendant “was obstreperous, even in his final moments before the

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[c]ourt,” which was “noteworthy” because defendant had “acted violently and in a

disruptive way on many occasions within [the] courtroom.”

¶ 18 Defendant filed his timely notice of appeal.

¶ 19 Appellate Court

¶ 20 The appellate court affirmed defendant’s convictions and sentence. 2021 IL

App (1st) 180523-U, ¶ 1. On appeal, relying on the appellate court’s opinion in

People v. Bass, 2019 IL App (1st) 160640, ¶¶ 62, 71, aff’d in part and vacated in

part, 2021 IL 125434, ¶ 34, before Bass reached this court, defendant argued, as

relevant here, that the circuit court erred by failing to quash his arrest and suppress

his following statement because his arrest was prompted by an investigative alert

and not an arrest warrant. In Bass, a divided panel of the appellate court had held

that the defendant’s motion to suppress should have been granted because arrests

based solely on investigative alerts, even if the alert is based on probable cause,

violate the Illinois Constitution. Id. ¶¶ 7, 42, 71. In addressing defendant’s

argument, the appellate court in this case noted that defendant had not argued on

appeal that the officers lacked probable cause to arrest him. 2021 IL App (1st)

180523-U, ¶ 82.

¶ 21 The appellate court also noted that after briefing had completed, in April 2021,

this court filed an opinion in Bass, agreeing with the appellate court that the

defendant’s motion to suppress should have been granted, but this court reached

that conclusion on narrower grounds, finding that the traffic stop at issue was

unconstitutionally extended. Id. ¶ 83 (citing People v. Bass, 2021 IL 125434, ¶ 26).

Because this court decided the case on narrower grounds, it did not address the

constitutional issue regarding whether investigative alerts violate the Illinois

Constitution, and this court vacated the portions of the appellate opinion relating to

investigatory alerts. Bass, 2021 IL 125434, ¶¶ 29, 33.

¶ 22 Thus, following its own precedent (People v. Braswell, 2019 IL App (1st)

172810, ¶ 39; People v. Simmons, 2020 IL App (1st) 170650, ¶ 64; People v.

Thornton, 2020 IL App (1st) 170753, ¶¶ 45-50; People v. Bahena, 2020 IL App

(1st) 180197, ¶ 63), the appellate court in this case was unpersuaded by defendant’s

argument that his arrest was unconstitutional because he was arrested pursuant to

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an investigative alert that violated the Illinois Constitution. 2021 IL App (1st)

180523-U, ¶ 84. The appellate court therefore held that the circuit court did not err

when it denied defendant’s motion to quash arrest and suppress his statement. Id.

¶ 23 Defendant also argued on appeal that the circuit court improperly failed to

consider the sentencing factors listed in the Unified Code of Corrections (Code)

that are applicable when sentencing individuals under the age of 18 at the time of

the commission of an offense (730 ILCS 5/5-4.5-105(a) (West 2016)). 2021 IL App

(1st) 180523-U, ¶ 124. Section 5-4.5-105(a) of the Code first became effective

January 1, 2016, 2 yet defendant did not raise it prior to appeal.

¶ 24 Accordingly, due to defendant’s forfeiture of the issue, the appellate court

reviewed the issue under plain error principles and found no plain error. Id. ¶¶ 130-

37. The appellate court held that section 5-4.5-105(a) of the Code did not apply to

defendant’s sentencing because defendant committed his offenses prior to its

effective date and, in any event, the circuit court had considered the relevant factors

listed. Id. The appellate court rejected defendant’s assertion that, even though the

circuit court was “mindful” of his young age at the time of the offense, the circuit

court had not considered the specific factors relative to youth set forth in section 5-

4.5-105 of the Code. Id. ¶ 135. The appellate court held that the circuit court was

not required to recite and assign value to each sentencing factor, nor was it required

to articulate the process it used to determine an appropriate sentence. Id.

Accordingly, the appellate court concluded that the circuit court had considered the

relevant factors and did not abuse its discretion when it sentenced defendant. Id.

¶ 137.

¶ 25 Presiding Justice Mikva concurred in part and dissented in part, noting that she

would have affirmed defendant’s convictions but would have remanded for

resentencing because the circuit court did not expressly discuss the statutory

mitigating factors at sentencing. Id. ¶ 143 (Mikva, P.J., concurring in part and

dissenting in part). Presiding Justice Mikva asserted that the circuit court was

obligated to consider the factors imposed on individuals under the age of 18 (730

2

Pursuant to the Effective Date of Laws Act (5 ILCS 75/0.01 et seq. (West 2014)), because the

underlying bill was “passed” prior to June 1, 2015 (see 5 ILCS 75/3 (West 2014)), the effective date

for Public Act 99-69 was January 1, 2016 (see 5 ILCS 75/1(a) (West 2014)). Ill. Const. 1970, art.

IV, § 10; People v. Hunter, 2017 IL 121306, ¶ 7 n.1.

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ILCS 5/5-4.5-104(a) (West 2016)) because the circuit court was reconsidering the

originally imposed de facto life sentence. 2021 IL App (1st) 180523-U, ¶ 146.

Citing this court’s decision in People v. Buffer, 2019 IL 122327, ¶ 47, Presiding

Justice Mikva found the circuit court’s statements insufficient to suggest that the

relevant factors were considered and would have remanded to apply those factors

and resentence defendant. 2021 IL App (1st) 180523-U, ¶ 149-50.

¶ 26 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315

(eff. Oct. 1, 2021). We allowed the ACLU of Illinois, Chicago Appleseed Center,

Chicago Council of Lawyers, and National Association for Criminal Defense

Attorneys to file a joint brief as amici curiae in support of defendant’s position. We

also allowed the City of Chicago, the Illinois Sheriffs’ Association, the Illinois

Association of Chiefs of Police, the Village of Bannockburn, the City of Crystal

Lake, the Village of Glenview, and the Village of Grayslake to file briefs as amici

curiae in support of the State’s position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

All of the amici briefs involve the constitutionality of investigatory alerts.

¶ 27 ANALYSIS

¶ 28 Investigative Alerts

¶ 29 Defendant contends that the investigative alert system used by the Chicago

Police Department, wherein the police entered and retrieved a notice in a database

that identified defendant as one whom there was probable cause to arrest, was

inconsistent with the United States and Illinois Constitutions (U.S. Const., amend.

IV; Ill. Const. 1970, art. I, § 6) and, thus, the circuit court erred in failing to grant

his motion to quash arrest and suppress evidence. Defendant requests this court to

reverse the appellate court’s judgment affirming his convictions and remand for a

new trial.

¶ 30 “In reviewing a ruling on a motion to quash arrest and suppress evidence, we

apply a two-part standard of review.” People v. Grant, 2013 IL 112734, ¶ 12.

“While we accord great deference to the trial court’s factual findings, and will

reverse those findings only if they are against the manifest weight of the evidence,

we review de novo the court’s ultimate ruling on a motion to suppress involving

probable cause.” Id.

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¶ 31 With regard to his motion to quash arrest, defendant’s arguments throughout

this case have shifted. In his brief submitted to this court, defendant argues that

under the federal and state constitutions, absent exigent circumstances or consent,

police must, whenever possible, obtain an arrest warrant issued by a neutral

magistrate upon a finding of probable cause prior to effectuating an arrest in the

home. We agree with this proposition. Absent exigent circumstances or consent,

officers may not effect a warrantless arrest in the home. Payton v. New York, 445

U.S. 573, 590 (1980) (absent exigent circumstances, fourth amendment prohibits

police from making a warrantless and nonconsensual entry into a suspect’s home

to make a routine felony arrest).

¶ 32 We note, however, that at no time after the hearing on the motion to suppress

did defendant argue in the circuit court that the State had failed to prove voluntary

consent to enter the home to effect the defendant’s arrest, despite the circuit court’s

finding otherwise. Defendant did not argue in posttrial motions before the circuit

court, on appeal from the order denying his motion to suppress, or in his petition

for leave to appeal in this court that the State failed to prove voluntary consent to

enter the home to effect defendant’s arrest in violation of Payton. See People v.

Bean, 84 Ill. 2d 64, 69 (1981) (“when voluntary consent is given to enter one’s

residence and an arrest is effected based on probable cause, the suspect’s rights

under the fourth amendment are not violated, even in the absence of exigent

circumstances”); see also id. at 69-70 (consent may be given by arrestee or third

party (citing United States v. Matlock, 415 U.S. 164, 171 (1974))).

¶ 33 Accordingly, after the hearing on the motion to quash arrest and suppress

evidence, defendant forfeited any argument that the State failed to prove that the

officers, at the threshold of the home at daylight using no force or deception (People

v. Bonilla, 2018 IL 122484, ¶ 20 (police officer not armed with a warrant may

approach home and knock, as any private citizen might do (citing Kentucky v. King,

563 U.S. 452, 469 (2011)))), had acquired proper consent to enter the residence to

effectuate defendant’s arrest. See People v. Brown, 236 Ill. 2d 175, 183 (2010)

(issue may be deemed forfeited if not raised in the petition for leave to appeal);

People v. Phillips, 215 Ill. 2d 554, 565 (2005) (failure to argue point in appellant’s

opening brief results in forfeiture of issue); People v. Cuadrado, 214 Ill. 2d 79, 89

(2005) (in general, failure to raise issue in posttrial motion results in forfeiture of

that issue on appeal). Because defendant did not previously raise this issue, the

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appellate court did not address it, and we therefore decline to overlook defendant’s

forfeiture of it. We caution, however, that Payton remains good law and, despite

our holding below, that probable cause supports a warrantless arrest even if

communicated via an investigatory alert, the fourth amendment nevertheless

prohibits police officers from making a warrantless entry into the home to make a

routine felony arrest, absent exigent circumstances or consent. See Payton, 445

U.S. at 590.

¶ 34 After the appellate court’s 2019 holding in Bass, defendant argued for the first

time in the appellate court that, pursuant to Bass, the circuit court erred in denying

his motion to quash arrest because “the unwarranted arrest was made pursuant to

an investigative alert [with] probable cause attached.” Likewise, in his petition for

leave to appeal to this court, defendant argued the police “effectuated an

unconstitutional arrest by relying on a police investigative alert.” Although

defendant also forfeited this argument by failing to preserve it in the circuit court

by challenging the denial of his motion to quash in a posttrial motion (People v.

Cosby, 231 Ill. 2d 262, 271-73 (2008) (challenges to denial of motion to suppress

at trial, constitutional or otherwise, are forfeited if not raised in a posttrial motion)),

we nevertheless address defendant’s contention, raised and addressed in the

appellate court and raised in this court, that his statement should be suppressed

because he was arrested pursuant to an investigative alert, not a warrant based on

probable cause, pursuant to the appellate court’s reasoning in Bass, 2019 IL App

(1st) 160640, ¶¶ 62, 71, aff’d in part and vacated in part, 2021 IL 125434, ¶ 34.

See People v. Sophanavong, 2020 IL 124337, ¶ 21 (forfeiture is a limitation on the

parties and not on the court, and a court may overlook forfeiture where necessary

to reach a just result or maintain a sound body of precedent). Upon review, we find

no error.

¶ 35 We begin by briefly reviewing the law related to warrantless arrests based on

probable cause. In United States v. Watson, 423 U.S. 411 (1976), the United States

Supreme Court held that a warrantless arrest based on probable cause complies with

the fourth amendment, even if there was time to obtain an arrest warrant. The court

explained that “there is nothing in the Court’s prior cases indicating that under the

Fourth Amendment a warrant is required to make a valid arrest for a felony.” Id. at

416-17. Thus, “[t]he necessary inquiry *** was not whether there was a warrant or

whether there was time to get one, but whether there was probable cause for the

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arrest.” Id. at 417. The court noted that this was an “ancient common-law rule” and

traced it back to at least the time of Blackstone. Id. at 418. The court further noted

that this was the prevailing rule under state constitutions and statutes as well. Id. at

419. The court explained why it was continuing to adhere to this rule:

“Law enforcement officers may find it wise to seek arrest warrants where

practicable to do so, and their judgments about probable cause may be more

readily accepted where backed by a warrant issued by a magistrate. See United

States v. Ventresca, 380 U. S. 102, 106 (1965); Aguilar v. Texas, 378 U. S. 108,

111 (1964); Wong Sun v. United States, 371 U. S. 471, 479-480 (1963). But we

decline to transform this judicial 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 rather than to encumber criminal

prosecutions with endless litigation with respect to the existence of exigent

circumstances, whether it was practicable to get a warrant, whether the suspect

was about to flee, and the like.” Id. at 423-24.

¶ 36 In Illinois, the legislature has placed warrantless arrests based on probable cause

on equal footing with arrests made pursuant to warrants. Section 107-2(1) of the

Code of Criminal Procedure of 1963 (725 ILCS 5/107-2(1) (West 2012)) provides

as follows:

“A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) He has reasonable grounds to believe that a warrant for the person’s

arrest has been issued in this State or in another jurisdiction; or

(c) He has reasonable grounds to believe that the person is committing

or has committed an offense.”

Like the United States Supreme Court, this court has long recognized the validity

of warrantless arrests based on probable cause. See, e.g., Grant, 2013 IL 112734,

¶ 11; People v. Jackson, 232 Ill. 2d 246, 274-75 (2009); People v. Montgomery,

112 Ill. 2d 517, 525 (1986); People v. Jones, 16 Ill. 2d 569, 573 (1959); People v.

Tillman, 1 Ill. 2d 525, 530 (1953); People v. Henneman, 373 Ill. 603, 606 (1940);

People v. Swift, 319 Ill. 359, 363 (1925).

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¶ 37 Despite this authority, defendant argues that his arrest was unlawful because

the Chicago Police Department had issued an investigative alert in his case.

Defendant makes two somewhat distinct arguments about investigative alerts. His

first argument focuses on the structure of the investigative alert system and argues

that it establishes a parallel internal proxy warrant system that is unconstitutional

because it fails to comply with necessary warrant procedures such as the

requirement of an affidavit presented to a neutral and detached magistrate.

Defendant argues that the Chicago Police Department’s internal proxy warrant

system puts arresting officers in situations where they do not have sufficient

assurances that they are acting on trustworthy information.

¶ 38 As noted, defendant did not raise this issue in the circuit court and therefore

forfeited it for purposes of review. More importantly, however, defendant failed to

introduce evidence in the circuit court about the structure of the Chicago Police

Department’s investigative alert system, so a record does not exist on this issue.

Defendant’s argument in his brief is based on references to directives found on the

Chicago Police Department’s website, on testimony in another case, and not on

evidence in the record here. See People v. Gipson, 29 Ill. 2d 336, 342 (1963) (court

will not consider argument relying on document not of record); People v. Neukom,

16 Ill. 2d 340, 346 (1959) (“we cannot pass upon matters not appearing in the record

before us”); see, e.g., Freedman v. Muller, 2015 IL App (1st) 141410, ¶ 21 (refusing

to consider documents provided only in the appendix to a brief because “a court of

review must determine the issues before it solely on the basis of the record made in

the trial court”). We are unable to review this issue because it is not sufficiently

presented by the record.

¶ 39 Defendant’s second argument about investigative alerts is based on an analysis

first used by the appellate court in Bass, 2019 IL 160640, aff’d in part & vacated

in part, 2021 IL 125434. 3 In Bass, the victim told the police that she had been

sexually assaulted by Bass, and the police issued an investigative alert for him. Id.

¶ 7. The investigative alert summarized the incident and stated that there was

probable cause to arrest Bass. Id. Three weeks later, Bass was a passenger in a

vehicle that was pulled over by the police. Id. ¶ 8. When the police ran a “ ‘name

3

Although this portion of Bass was vacated by this court when it affirmed the appellate court’s

decision on another ground, we discuss it at some length because it formed the basis for defendant’s

argument.

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check’ ” on Bass, they discovered the investigative alert and placed him under

arrest. Id. The circuit court denied Bass’s motion to quash arrest and suppress

evidence. Id. ¶ 14.

¶ 40 The appellate court reversed. Id. ¶ 97. The court acknowledged that Bass’s

arrest pursuant to an investigative alert did not violate the fourth amendment, as it

is well settled that the police may make warrantless arrests outside the home as long

as they have probable cause for the arrest. Id. ¶ 37. Because Bass conceded that

probable cause existed for his arrest, that arrest did not violate the fourth

amendment. Id.

¶ 41 The appellate court in Bass determined, nevertheless, that the arrest violated

article I, section 6, of the Illinois Constitution. Id. ¶ 43. The appellate court

acknowledged that this court had adopted the “limited lockstep” approach for

construing our constitution vis-à-vis the United States Constitution. Id. ¶ 40. 4 The

appellate court held that departure from lockstep construction was warranted

because of a difference in wording between the fourth amendment and the search

and seizure clause of our state constitution. The fourth amendment provides that no

warrants shall issue “but upon probable cause, supported by Oath or affirmation”

(emphasis added) (U.S. Const., amend. IV), while article I, section 6, of the Illinois

Constitution provides that no warrant shall issue but upon probable cause

“supported by affidavit” (emphasis added) (Ill. Const. 1970, art. I, § 6). The court

explained that the requirement of an “affidavit” rather than an “Oath or affirmation”

dated from the 1870 Constitution and indicated that the search and seizure clause

of our constitution was intended to provide greater protection than the fourth

amendment. Bass, 2019 IL 160640, ¶¶ 49-57. The appellate court cited Lippman v.

People, 175 Ill. 101, 112 (1898), for the proposition that the requirement of an

“affidavit” shows that the search and seizure clause of the state constitution goes

4

Under this approach, we construe provisions of our state constitution in lockstep with their

federal counterparts unless certain criteria are met. In order to depart from lockstep,

“ ‘We must find in the language of our constitution, or in the debates and the committee reports

of the constitutional convention, something which will indicate that the provisions of our

constitution are intended to be construed differently than are similar provisions in the Federal

Constitution, after which they are patterned.’ ” People v. Caballes, 221 Ill. 2d 282, 310 (2006)

(quoting People v. Tisler, 103 Ill. 2d 226, 245 (1984)).

This court has also recognized that it may depart from lockstep construction based on long-

standing state traditions and values. Id. at 310-11.

- 14 -

“ ‘a step beyond’ ” the fourth amendment. Bass, 2019 IL App (1st) 160640, ¶ 52

(quoting Lippman, 175 Ill. at 112).

¶ 42 The appellate court then discussed People v. McGurn, 341 Ill. 632 (1930), a

case in which two police officers arrested the defendant pursuant to a “standing

order” from a superior officer to arrest the defendant. Bass, 2019 IL 160640, ¶ 55.

In that case, this court invalidated the arrest, explaining 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.” McGurn, 341 Ill. at 638.

The Bass majority found in this court’s case law a thread that “the mere word of an

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

cause.” Bass, 2019 IL App (1st) 160640, ¶ 57. Rather, in Illinois, the “interposition

of a neutral magistrate became the paradigm of investigative propriety.” Id.

¶ 43 The appellate court in Bass acknowledged the long-standing common-law rule

allowing warrantless felony arrests based on probable cause. Id. ¶ 58. Nevertheless,

the court believed that McGurn had placed limits on this rule that were “relevant to

the constitutionality of investigative alerts.” Id. ¶ 59. The court concluded that this

court’s case law established the proposition that “[t]he 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.” Id.

¶ 44 The appellate court in Bass explained, however, that the rule it was adopting

would not impede officers from relying on the collective knowledge of their fellow

officers. The court agreed with the State that it had clearly been established in cases

such as Whiteley v. Warden, 401 U.S. 560 (1971), and United States v. Hensley,

469 U.S. 221 (1985), that arresting officers may rely on information provided by

nonarresting officers, as long as the facts known to the nonarresting officers

establish probable cause. Bass, 2019 IL App (1st) 160640, ¶ 60. However, the Bass

majority determined that this rule applies “in a world without investigative alerts.”

Id. ¶ 62.

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¶ 45 Justice Mason concurred in part and dissented in part. Id. ¶¶ 108-28 (Mason, J.,

concurring in part and dissenting in part). Justice Mason rejected the majority’s

determination that Bass’s arrest, which was supported by probable cause, was

nevertheless rendered unconstitutional because an investigative alert had been

issued. Id. ¶ 120. Justice Mason reasoned that “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,” and she pointed out

that the majority had not articulated any such reason. Id. Justice Mason noted that

Illinois law permits warrantless arrests based on probable cause (see 725 ILCS

5/107-2(1)(c) (West 2014)) and this court’s case law permits the police to rely on

their collective knowledge in establishing probable cause (see People v. Buss, 187

Ill. 2d 144, 204 (1999)). Bass, 2019 IL App (1st) 160640, ¶ 120. Thus, she could

“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.” Id.

¶ 46 As noted, this court would ultimately vacate the portion of Bass dealing with

the constitutionality of investigative alerts. This court agreed with the appellate

court’s alternative basis for holding Bass’s arrest unconstitutional—that it followed

a traffic stop that was unlawfully extended in violation of the fourth amendment—

and therefore vacated the remaining portion of the appellate court’s opinion. Bass,

2021 IL 125434, ¶ 33. In the meantime, however, the Bass investigative alerts

analysis had already been rejected by another panel of the First District. In

Braswell, 2019 IL App (1st) 172810, ¶ 39, the appellate court declined to follow

Bass and expressed its agreement with the Bass dissent. The appellate court

explained its rejection of Bass as follows:

“The majority in Bass suggests, however, that even where a police officer has

probable cause to arrest an individual, such arrest is unconstitutional if any

police agency has issued an investigative alert. This creates the somewhat

paradoxical situation where police may arrest an individual without a warrant

and without an investigative alert if they have probable cause to do so, but that

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same arrest becomes unconstitutional if police issue an investigative alert based

on the same facts that gave rise to the probable cause.” Id.

Until recently, all subsequent First District decisions, including the appellate court

in this case (2021 IL App (1st) 180523-U, ¶ 84 (majority opinion)), would follow

Braswell rather than Bass. See, e.g., People v. Hardaway, 2022 IL App (1st)

200660-U, ¶ 26; People v. Hodrick, 2021 IL App (1st) 182367-U, ¶ 105; People v.

Little, 2021 IL App (1st) 181984, ¶ 63; Simmons, 2020 IL App (1st) 170650, ¶ 64;

Bahena, 2020 IL App (1st) 180197, ¶¶ 59-64; Thornton, 2020 IL App (1st) 170753,

¶¶ 45-50.

¶ 47 Even so, another panel of the First District revived the Bass analysis. See People

v. Smith, 2022 IL App (1st) 190691. In that case, the defendant was arrested in

connection with the beating and death of Anthony Morris. Id. ¶ 3. The defendant

filed a motion to quash arrest and suppress evidence, arguing that the arrest was

illegal because it was based on an investigative alert and the police had waited more

than six months to arrest him. Id. ¶ 4. The trial court denied the motion because it

found that the police had probable cause to arrest him. Id. ¶ 16. The First District

concluded that the defendant had been subjected to an unconstitutional arrest, but

it ultimately did not reverse his conviction because it held that the admission of the

evidence derived from the unlawful arrest was harmless error. Id. ¶ 101.

¶ 48 In concluding that the arrest was unlawful, the appellate court largely followed

the Bass analysis. The court noted that the defendant had not challenged his arrest

under the fourth amendment, as the United States Supreme Court has held that

warrantless arrests based on probable cause do not violate the fourth amendment.

Id. ¶ 68. The appellate court then held that the search and seizure clause of the

Illinois Constitution provides greater protection than the fourth amendment because

it requires that a warrant be based on probable cause supported by affidavit, rather

than by oath or affirmation. Id. ¶ 78. Like the Bass court, Smith cited Lippman for

the proposition that the affidavit requirement goes “a step beyond” the fourth

amendment. Id. ¶ 81 (citing Lippman, 175 Ill. at 112). The appellate court argued

that Lippman recognized the importance of a magistrate in the probable cause

determination when it invalidated a statute allowing a search warrant to be issued

based on the written oath of a property owner before a justice of the peace or a

police magistrate that he had reason to believe that another person was using the

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owner’s casks, barrels, kegs, bottles, or boxes. Id. ¶¶ 82-84. The statute was held

unconstitutional because it attempted to transfer the judicial discretion from the

magistrate to the party making the affidavit. Id. ¶ 83.

¶ 49 Like the Bass majority, Smith also placed great importance on McGurn. Smith

noted that McGurn had rejected a warrantless arrest based on a standing order,

which the Smith majority believed resembled an investigative alert. Id. ¶ 86. The

Smith majority asserted that McGurn stands for the proposition that “an officer who

otherwise lacked reason to suspect a crime could not make an arrest based merely

on a standing order.” Id. ¶ 89. The appellate court summed up what it believed was

the state of the law under the 1870 Constitution:

“In sum, our supreme court precedent interpreting the search and seizure

clause of the 1870 Constitution emphasized that an ‘affidavit’ supporting

probable cause should be presented to a neutral magistrate before a warrant may

issue. A warrantless arrest may be justified where the arresting officer has

personal knowledge giving rise to a reasonable ground for believing that the

arrestee committed a crime. See [McGurn, 341 Ill.] at 636. However, a

municipality may not ‘clothe any officer with the autocratic power to order the

summary arrest and incarceration of any citizen without warrant or process of

law.’ Id. at 638.” Id. ¶ 90.

¶ 50 Smith then noted that the affidavit language had been retained in the 1970

Constitution and, thus, concluded that the law as summarized above remains the

same to this day. Id. ¶¶ 92-93. The appellate court explained that, just as this court

had invalidated an arrest based on a standing order in McGurn, it had no choice but

to hold that the defendant’s arrest based on an investigative alert was unlawful. Id.

¶ 95. The appellate court further held that, although there were some circumstances

under which an arrest based on an investigative alert might be appropriate, such as

when probable cause existed and there was a danger that the suspect may commit

crimes in the immediate future or was a known flight risk, those circumstances were

not present there, where the police waited six months to arrest the defendant. Id.

¶ 97. The court acknowledged that probable cause existed for the defendant’s arrest

but held this to be irrelevant, as the police did not submit an affidavit to a magistrate.

Id. ¶ 98.

- 18 -

¶ 51 Justice Coghlan specially concurred. Id. ¶¶ 114-21 (Coghlan, J., concurring).

Justice Coghlan agreed with the majority that overwhelming evidence supported

the defendant’s guilt and that, therefore, the conviction should be affirmed. Id.

¶ 115. She disagreed, however, that defendant’s arrest was unconstitutional. Id.

¶ 116. Justice Coghlan would have held that the defendant’s arrest was not

unconstitutional, as it was supported by probable cause. Id. ¶ 117. While the

arresting officer did not have personal knowledge of the facts underlying the

murder investigation, probable cause may be established by the collective

knowledge of officers investigating a crime. Id.

¶ 52 Before explaining why we reject the Bass/Smith analysis, we note that Braswell

and other cases that followed Braswell described the Bass holding too narrowly.

Again, Braswell said that Bass created

“the somewhat paradoxical situation where police may arrest an individual

without a warrant and without an investigative alert if they have probable cause

to do so, but that same arrest becomes unconstitutional if police issue an

investigative alert based on the same facts that gave rise to the probable cause.”

Braswell, 2019 IL App (1st) 172810, ¶ 39.

But the Bass majority was clear that it regarded the lack of a warrant—rather than

the issuance of an investigative alert—as the essential problem. The court explained

that it was “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).” Bass,

2019 IL App (1st) 160640, ¶ 62 (majority opinion). Thus, the court held that “the

Illinois Constitution requires, in the ordinary case, a warrant to issue before an

arrest can be made.” (Emphasis added.) Id.

¶ 53 And, if there were any doubt about the court’s holding, Bass went on to say that

officers may still 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.’ ” Id. ¶ 67 (quoting People v.

Harrison, 2016 IL App (5th) 150048, ¶ 17, quoting King, 563 U.S. at 460). None

of these exceptions applied to Bass’s case. Thus, the court said at the end of its

discussion, “[w]e find that our constitution goes ‘a step beyond’ the United States

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

- 19 -

a valid arrest can be made.” Id. ¶ 71. Clearly, despite what Braswell stated, Bass

would have held the defendant’s warrantless arrest to be unlawful even if an

investigative alert had not been issued. Smith, likewise, focused on the lack of

exigent circumstances and explained that the arrest was invalid, despite the

presence of probable cause, because the police had not submitted an affidavit to a

magistrate. Smith, 2022 IL App (1st) 190691, ¶¶ 96-98.

¶ 54 Bass and Smith reflect a comprehensive rejection of the position the United

States Supreme Court adopted in Watson. Again, Watson held that the United States

Constitution does not require arrest warrants in cases where probable cause exists,

and the Supreme Court explained that it was not going to “encumber criminal

prosecutions with endless litigation with respect to the existence of exigent

circumstances, whether it was practicable to get a warrant, whether the suspect was

about to flee, and the like.” Watson, 423 U.S. at 423-24. By contrast, Bass and

Smith held that the Illinois Constitution does require arrest warrants even when

probable cause exists, and Bass and Smith would require criminal prosecutions in

Illinois to be encumbered with litigation with respect to exigent circumstances, etc.

¶ 55 Having clarified the holdings in Bass and Smith, we now explain why we reject

them. First, the premise that the difference between the fourth amendment’s use of

“Oath or affirmation” and the Illinois Constitution’s use of “affidavit” is a reason

to depart from lockstep construction was specifically rejected in People v. Caballes,

221 Ill. 2d 282 (2006). Indeed, Caballes viewed the similarity between the wording

of the fourth amendment and the search and seizure clause of the Illinois

Constitution as a reason not to depart from lockstep:

“The phrase ‘supported by affidavit’ in the state provision being virtually

synonymous with ‘by Oath or affirmation’ in the fourth amendment, this court

repeatedly held that the two constitutions should be construed alike. See People

v. Castree, 311 Ill. 392, 395 (1924) (‘The fourth amendment to the Federal

constitution is in practically the same words’); People v. Reynolds, 350 Ill. 11,

16 (1932) (noting that the fourth amendment was ‘the prototype for section 6

of article 2 of our State constitution and no reason is perceived why the latter

should not receive the same interpretation as the former’); People v. Grod, 385

Ill. 584, 592 (1944) (the guarantees of the fourth and fifth amendments ‘are in

effect the same as sections 6 and 10 of article II of the Illinois constitution, and

- 20 -

are construed alike’); People v. Tillman, 1 Ill. 2d 525, 529 (1953) (‘while in

somewhat different language,’ the two provisions are ‘in effect the same’ and

should be construed alike); People v. Jackson, 22 Ill. 2d 382, 387 (1961)

(restating intention to ‘follow the decisions of the United States Supreme Court

on identical State and Federal constitutional problems’).” Caballes, 221 Ill. 2d

at 291-92.

See also People v. Smith, 152 Ill. 2d 229, 250 (1992) (“This court has determined

that the protections afforded by article I, section 6, of our State constitution against

‘unreasonable’ searches and seizures are substantially identical to those provided

by the fourth amendment.”).

¶ 56 Second, as the State points out, the difference between the wording of the two

provisions goes only to the mechanism for obtaining a warrant and not to the scope

of the warrant requirement itself. Thus, as correctly pointed out by the State, that a

warrant application must be supported by affidavit does not suggest that a warrant

is required for all arrests, nor does it have any bearing on the question before the

court. We are concerned here with the propriety of a warrantless arrest supported

by probable cause. Any long-standing state tradition of requiring that probable

cause to obtain a warrant be based on an affidavit rather than on oath or affirmation

provides no basis to depart from lockstep on the question of the propriety of

warrantless arrests based on probable cause. With respect to that question, our long-

standing state tradition is to allow warrantless arrests based on probable cause. See,

e.g., People v. Bambulas, 42 Ill. 2d 419, 422 (1969) (“a lawful arrest may be made

without an arrest warrant if the officers making the arrest had probable cause to

make it”); Swift, 319 Ill. at 363 (“[i]t is the rule in this State, and generally, that

where an arrest is made by an officer who has reasonable ground for believing that

the person arrested is implicated in a crime, such officer has a right to arrest without

a warrant”); Ill. Rev. Stat. 1874, ch. 38, § 342 (allowing warrantless arrest when a

criminal offense has been committed and the officer has “reasonable ground for

believing that the person to be arrested has committed it”).

¶ 57 Third, the principal cases relied on by Bass and Smith do not compel a different

result. Lippman did state, as Bass and Smith noted, that the warrant clause of the

state constitution goes “a step beyond” the fourth amendment because it requires

an affidavit rather than an oath or affirmation. Lippman, 175 Ill. at 112. But

- 21 -

Lippman was not a lockstep case, and this court explained in Caballes that the

wording was sufficiently similar that it did not compel a departure from lockstep.

See Caballes, 221 Ill. 2d at 291-92. Indeed, the full quote from Lippman is that “[i]t

is a step beyond the constitution of the United States, in requiring the evidence of

probable cause to be made a permanent record in the form of an affidavit,

otherwise it is the same.” (Emphases added.) Lippman, 175 Ill. at 112. Thus, the

difference between the two provisions is only in how the evidence supporting

probable cause is recorded. It is not clear how one could conclude from this

difference that warrantless arrests in Illinois are generally unconstitutional.

Moreover, Lippman itself did not view this as a reason to depart from lockstep

construction. Quite the opposite. Right after the “step beyond” comment, the court

proceeded to rely on fourth amendment law and cases from states that have an

“Oath or affirmation” requirement. Id. at 112-13. The statute at issue in Lippman

provided:

“ ‘In case the owner or owners of any cask, barrel, keg, bottle or box so marked,

stamped and registered as aforesaid, shall, in person or by agent, make oath in

writing, before any justice of the peace or police magistrate, that he has reason

to believe, and does believe, that any manufacturer or bottler of ale, porter, lager

beer, soda, mineral water or other beverage, or any other person, is using, in

any manner by this act declared to be unlawful, any of the casks, barrels, kegs,

bottles or boxes of such person or his principal, or that any junk dealer or dealer

in casks, barrels, kegs, bottles or boxes, or any other dealer, manufacturer or

bottler, has any such cask, barrel, keg, bottle or box secreted in, about or upon

his, her or their premises, the said justice of the peace or police magistrate shall

issue his search warrant and cause the premises designated to be searched as in

other cases where search warrants are issued, as is now provided by law; and in

case any such cask, barrel, keg, bottle or box, duly marked or stamped and

registered as aforesaid, shall be found in, upon or about the premises so

designated, the officer executing such search warrant shall thereupon arrest the

person or persons named in such search warrant, and bring him, her or them

before the justice of the peace or police magistrate who issued such warrant

***.’ ” (Emphases added.) Lippman, 175 Ill. at 110-11 (quoting Ill. Rev. Stat.

1874, ch. 120, § 4).

- 22 -

¶ 58 The court’s concern was that the written oath required by the statute did not

have to be based on facts but rather could be based on a mere belief. Id. at 112. The

court looked to cases construing the fourth amendment and out-of-state cases

construing statutes that had an “Oath or affirmation” requirement and noted that

they required that the complaint “must set up facts and cannot rest on mere belief.”

Id. at 112-13. Either under the fourth amendment or state statutes that have an “Oath

or affirmation” requirement, a mere belief is not sufficient to establish probable

cause. Id. at 113. The problem in Lippman was that the statute allowed a warrant to

issue based on the belief of the party requesting it. The court invalidated the statute

on this basis. That party was not required “to state any fact or satisfy the magistrate

that there is reasonable ground for his belief.” Id. The court did not view the

affidavit requirement as a reason to depart from fourth amendment law. The court

followed fourth amendment law. Both in cases where the complaint was supported

by an affidavit and those in which it was supported by an oath, probable cause could

not be based on a mere belief. Id. at 112-13. Contrary to what Bass and Smith held,

Lippman provides no basis to depart from lockstep.

¶ 59 Nor does McGurn support the Bass/Smith conclusion. Bass and Smith noted that

McGurn held the defendant’s arrest unlawful when he was arrested on the basis of

a “standing order” issued by the commissioner of detectives. Smith specifically

analogized the standing order to an investigative alert. See Smith, 2022 IL App (1st)

190691, ¶ 86. Both Bass and Smith relied on McGurn’s statement that “under the

constitution of this State 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.” McGurn, 341 Ill. at 638; see Bass, 2019 IL App

(1st) 160640, ¶ 56 (citing McGurn, 341 Ill. at 638); Smith, 2020 IL App (1st)

190691, ¶ 89 (citing McGurn, 341 Ill. at 638).

¶ 60 The passage that Bass and Smith relied on was made in the context of an arrest

made without probable cause. See McGurn, 341 Ill. at 633-35. The court noted that

it had long been the rule at common law that police may arrest without a warrant

when they have probable cause and that such arrests were permitted by statute. Id.

at 636 (citing Ill. Rev. Stat. 1929, ch. 38, ¶ 657 (Smith 1929)). The court also

explained that “[i]t is the rule in this State where a criminal offense has, in fact,

been committed, that an officer has a right to arrest without a warrant where he has

reasonable ground for believing that the person to be arrested is implicated in the

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crime.” Id. The court then stated that the problem in the case before it was that

“ ‘[t]here was no felony which had, in fact, been committed for the commission of

which [the arresting officer] had reasonable grounds to suspect [plaintiff in

error].’ ” Id. at 637. The arrest in that case was based solely on a standing order,

and there was no probable cause for the arrest. It is clear from the McGurn analysis

that the court would have upheld the arrest had it been based on probable cause.

Thus, that decision provides no support for the Bass/Smith conclusion, and Smith

was clearly wrong to analogize the standing order in that case to an investigative

alert based on probable cause.

¶ 61 Fourth, the Bass/Smith analysis is incompatible with the rule that probable

cause may be established by the collective knowledge of the police. See Buss, 187

Ill. 2d at 204 (when officers are working in concert, probable cause may be

established by information collectively received, even if that information is not

specifically known to arresting officer). Smith ignored that principle altogether,

while Bass acknowledged that it had been established by the United States Supreme

Court in cases such as Whiteley and Hensley 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.” Bass, 2019 IL App (1st)

160640, ¶ 60. Bass, however, stated that the principle applies “in a world without

investigative alerts.” Id. ¶ 61. We disagree. As Professor LaFave has noted:

“Whiteley has been properly applied by the lower courts to a variety of

situations. Clearly, the fellow officer rule is applicable to situations involving

all modes of communication, including computer, radio, telephone, teletype and

face-to-face contact. It governs whether the communication is from a superior

or fellow officer within the department ***.” 2 Wayne R. LaFave, Search and

Seizure § 3.5(b), at 336-37 (6th ed. 2020).

¶ 62 When Officers Kinney and O’Neill were assigned the investigative alert on July

22, 2013, the detectives investigating the shooting had probable cause to arrest

defendant, as provided by Hardaway’s statements that, shortly after he heard

gunshots, defendant, Barker, and Lynom entered his car and said they had

committed the shooting and believed Lynom had killed someone. See People v.

Gocmen, 2018 IL 122388, ¶ 19 (“probable cause exists when the facts known to the

officer at the time are sufficient to lead a reasonably cautious person to believe that

- 24 -

the arrestee has committed a crime,” which is “not proof beyond a reasonable doubt

or even that it be more likely than not” that the person committed a crime); see also

Beck v. Ohio, 379 U.S. 89, 91 (1964) (constitutionality of arrest depends upon

whether, at the moment arrest was made, officers had probable cause to make it);

Grant, 2013 IL 112734, ¶ 11 (probable cause to arrest is based on what police knew

“at the time of the arrest”). As noted by the appellate court, defendant did not

dispute on appeal that the officers had probable cause to arrest. The fact that the

information was shared with Officers Kinney and O’Neill by way of an

investigative alert does not invalidate the arrest. As the Seventh Circuit has

explained:

“[The] police often act on each other’s instructions. An all points bulletin or

wanted flyer induces an officer to arrest someone about whom he knows

nothing beyond the instruction to make an arrest. Whether the arrest is lawful

depends on the information available to the police collectively; if the person

issuing the radio bulletin or authorizing the wanted poster had probable cause

to do so, the facts need not be present to the mind of the person making the

arrest.” Gordon v. Degelmann, 29 F.3d 295, 300 (7th Cir. 1994).

¶ 63 In sum, Bass and Smith erred in holding that arrests pursuant to investigative

alerts automatically violate the Illinois Constitution. Those cases failed to identify

any valid basis for departing from lockstep construction. This court has already held

that the difference between “affidavit” in our search and seizure clause and “Oath

or affirmation” in the fourth amendment was not a reason to depart from lockstep.

See Caballes, 221 Ill. 2d at 291-92. Moreover, Bass and Smith did not identify any

“state tradition and values as reflected by long-standing state case precedent” (id.

at 314) that would justify a departure. Indeed, state case precedent demonstrates

that this court has long recognized the validity of warrantless arrests based on

probable cause. Thus, just as defendant’s arrest did not violate the fourth

amendment, it also did not violate the search and seizure clause of the Illinois

Constitution. And once it is accepted that warrantless arrests for felonies do not

violate the Illinois Constitution, there is no basis to hold that arrests pursuant to

investigative alerts violate the Illinois Constitution. As Justice Mason noted, when

the police already have the right to make a warrantless arrest for a felony, “there is

no apparent reason why *** the use of an investigative alert gives them any

- 25 -

untoward advantage.” Bass, 2019 IL App (1st) 160640, ¶ 120 (Mason, J.,

concurring in part and dissenting in part). Smith is hereby overruled.

¶ 64 Defendant also argues for the first time in his opening brief in this court that

arrests pursuant to investigative alerts violate the separation of powers clause of the

Illinois Constitution. See Ill. Const. 1970, art. II, § 1. Defendant failed to raise this

issue in his petition for leave to appeal and acknowledges that the separation-of-

powers clause “has not been previously cited in this case.” It is therefore forfeited.

See People v. Williams, 235 Ill. 2d 286, 298 (2009) (argument not raised in

appellate court or petition for leave to appeal is twice forfeited). Moreover, the

separation of powers argument is not properly presented by the record, as defendant

never made this argument in the trial court. Accordingly, we decline to excuse

defendant’s forfeiture of this issue.

¶ 65 Furthermore, because we find defendant’s arrest constitutional, we need not

address his argument with regard to the inapplicability of the good faith exception.

¶ 66 Sentencing

¶ 67 Defendant argues that the circuit court improperly sentenced him without

making findings pursuant to section 5-4.5-105(a) of the Code (730 ILCS 5/5-4.5-

105(a) (West 2016)). Defendant argues that, as a 17-year-old offender, he should

have been sentenced with subsection (a)’s specific findings relative to his status as

a juvenile offender. Defendant requests this court to order the circuit court to

conduct a new sentencing hearing to consider these factors.

¶ 68 The State asserts that defendant forfeited his claim that the circuit court erred

by not considering the sentencing factors listed in section 5-4.5-105(a) of the Code

(id.) because he did not raise the issue at sentencing or in his motion to reconsider

sentence. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“It is well settled that,

to preserve a claim of sentencing error, both a contemporaneous objection and a

written postsentencing motion raising the issue are required.”). Defendant counters

that the issue is not forfeited because he raised the issue of his youth generally in

his motion to reconsider and, alternatively, the error amounts to plain error. See

People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (plain error exists when “(1) a

clear or obvious error occurred and the evidence is so closely balanced that the error

- 26 -

alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so

serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process, regardless of the closeness of the evidence”); Ill.

S. Ct. R. 615(a) (eff. Jan. 1, 1967) (plain errors affecting substantial rights may be

noticed although not brought to the trial court’s attention).

¶ 69 We agree with the State that defendant forfeited the issue by failing to raise it

at sentencing or in his postsentencing motion. See Hillier, 237 Ill. 2d at 544; see

also People v. Jackson, 2022 IL 127256, ¶ 15 (“This forfeiture rule also prevents

criminal defendants from sitting idly by and knowingly allowing an irregular

proceeding to go forward only to seek reversal due to the error when the outcome

of the proceeding is not favorable.”). Moreover, because we find no clear error

occurred, we find no plain error. See Piatkowski, 225 Ill. 2d at 565.

¶ 70 Whether section 5-4.5-105(a)’s sentencing provisions (730 ILCS 5/5-4.5-

105(a) (West 2016)) applied to defendant presents a question of statutory

interpretation that this court reviews de novo. People v. Hunter, 2017 IL 121306,

¶ 15. “The cardinal rule in construing a statute is to ascertain and give effect to the

legislative intent.” In re Jarquan B., 2017 IL 121483, ¶ 22. “The most reliable

indicator of that intent is the plain and ordinary meaning of the statutory language

itself.” Id. “If the language of a statute is clear and unambiguous, we will give effect

to the statute’s plain meaning.” Id. “[I]n determining the intent of the legislature,

the court may properly consider not only the language of the statute, but also the

reason and necessity for the law, the evils sought to be remedied, and the purpose

to be achieved.” In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). “[A]

court presumes that the legislature did not intend to create absurd, inconvenient, or

unjust results.” People v. Gutman, 2011 IL 110338, ¶ 12.

¶ 71 When defendant was sentenced, subsection (a) provided as follows:

“On or after the effective date of this amendatory Act *** [(January 1, 2016,

the effective date of Public Act 99-69)], when a person commits an offense and

the person is under 18 years of age at the time of the commission of the offense,

the court, at the sentencing hearing ***, shall consider the following additional

factors in mitigation in determining the appropriate sentence:

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(1) the person’s age, impetuosity, and level of maturity at the time of the

offense, including the ability to consider risks and consequences of

behavior, and the presence of cognitive or developmental disability, or both,

if any;

(2) whether the person was subjected to outside pressure, including peer

pressure, familial pressure, or negative influences;

(3) the person’s family, home environment, educational and social

background, including any history of parental neglect, physical abuse, or

other childhood trauma;

(4) the person’s potential for rehabilitation or evidence of rehabilitation,

or both;

(5) the circumstances of the offense;

(6) the person’s degree of participation and specific role in the offense,

including the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her

defense;

(8) the person’s prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including

an expression of remorse, if appropriate.” 730 ILCS 5/5-4.5-105(a) (West

2016).

Defendant argues that, pursuant to the statute’s plain language and this court’s

precedent, the initial “on or after the effective date” clause refers to the date of the

sentencing hearing, not the date of the offense. Defendant asserts that the

intervening phrase identifies to whom the statute applies: persons “under 18 years

of age at the time of the commission of the offense.” Id. The State counters that the

circuit court’s obligation to consider the sentencing factors under subsection (a) is

triggered when, “[o]n or after the effective date” of that provision, “a person

commits an offense.” Id. The State argues that because defendant committed his

offense in 2013, prior to subsection (a)’s January 1, 2016, effective date, the

provisions did not apply to defendant’s sentencing hearing.

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¶ 72 We hereby hold that the version of section 5-4.5-105(a) in effect at the time of

defendant’s sentencing applied to defendant, even though he committed his offense

prior to the section’s effective date. This court has implicitly held as such in prior

cases before this court. See People v. Reyes, 2016 IL 119271, ¶ 12 (remanding for

resentencing under section 5-4.5-105(a) even though offense was committed prior

to enactment of the statute); Buffer, 2019 IL 122327, ¶ 47 (same); see also Hunter,

2017 IL 121306, ¶¶ 45-56 (in holding that because subsection (b) (730 ILCS 5/5-

4.5-105(b) (West 2016)), which included juvenile sentencing provisions giving

court discretion not to impose otherwise mandatory firearm enhancements, 5 did

not apply to defendants because they were sentenced well before the new juvenile

sentencing provisions became effective, this court referenced subsection (a)’s

temporal reach, yet it did not identify that temporal reach).

¶ 73 This construction is consistent with the subsection’s clear purpose: to require

courts sentencing juvenile offenders to consider the many differences between

juvenile offenders and adults. See Miller v. Alabama, 567 U.S. 460, 471 (2012)

(juveniles have diminished culpability, greater prospects for reform, lack of

maturity, underdeveloped senses of responsibility, vulnerabilities to negative

influences and outside pressures, limited control over their environments, an

inability to extricate themselves from crime-producing settings, and less-fixed traits

leading to irretrievable depravity). To construe it otherwise would allow circuit

courts to ignore these additional mitigating factors when sentencing some juvenile

offenders solely because of the date of their offense. This construction of section 5-

4.5-105(a), a sentencing amendment mitigating punishment, is also consistent with

section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2016)), which entitles a

defendant “to be sentenced under either the law in effect at the time the offense was

committed or that in effect at the time of sentencing.” People v. Hollins, 51 Ill. 2d

68, 71 (1972); see Perry v. Department of Financial & Professional Regulation,

2018 IL 122349, ¶ 41 (section 4 of the Statute on Statutes “is triggered where the

legislature’s intent as to temporal reach is not clear”). Accordingly, the version of

section 5-4.5-105(a) in effect at the time of defendant’s sentencing applied to

defendant, even though he committed his offense prior to the section’s effective

5

As of January 1, 2024, the subsection providing this discretion is subsection (e). See Pub. Act

103-191, § 10 (eff. Jan. 1, 2024) (amending 730 ILCS 5/5-4.5-105).

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date. Even so, the record reveals that the circuit court considered the relevant factors

found in section 5-4.5-105(a) when it sentenced defendant.

¶ 74 Defendant argues that the circuit court failed to consider these statutory factors

when sentencing him to an aggregate sentence of 32 years in prison. The State

counters that the record clearly reveals that the circuit court considered the factors.

The State asserts that, when defendant was sentenced, Illinois courts already

recognized the relevance of the factors found in section 5-4.5-105(a): (1) a

defendant’s youth, with all its attendant characteristics, at the time of the offense

(People v. Holman, 2017 IL 120655, ¶ 44, overruled on other grounds, People v.

Wilson, 2023 IL 127666, ¶ 42 (“We have long held that age is not just a

chronological fact but a multifaceted set of attributes that carry constitutional

significance.”); People v. Miller, 202 Ill. 2d 328, 341-42 (2002) (recognizing youth

as mitigating because of juvenile defendants’ relative immaturity)), as well as any

cognitive or developmental disability that the defendant had (730 ILCS 5/5-5-

3.1(a)(13) (West 2016) (“intellectual disability” is mitigating); People v. Peeples,

205 Ill. 2d 480, 545-46 (2002) (recognizing “cognitive deficits” as mitigating);

People v. Maxwell, 173 Ill. 2d 102, 112 (1996) (recognizing “intellectual and

developmental deficits” as mitigating)); (2) whether the defendant was subjected to

any outside pressures that might have led him to commit the offense (730 ILCS

5/5-5-3.1(a)(5) (West 2016) (listing as mitigating factor that defendant’s “criminal

conduct was induced or facilitated by someone other than the defendant”); People

v. Jones, 144 Ill. 2d 242, 275, 278 (1991) (recognizing evidence that defendant was

susceptible to peer pressure as mitigating); People v. Ruiz, 132 Ill. 2d 1, 24, 26

(1989) (same with evidence that defendant was “ ‘more a follower than a leader’ ”

and got involved in gangs due to “neighborhood pressure to join”); People v.

Adkins, 41 Ill. 2d 297, 301 (1968) (sentencing court should consider “the stimuli

which motivate [the defendant’s] conduct”); (3) his family, educational, and social

background, including whether he suffered parental neglect, physical abuse, or

other childhood trauma (730 ILCS 5/5-3-1, 5-3-2(a)(1) (West 2016) (sentencing

court must consider PSI, which must address defendant’s “family situation and

background”); Adkins, 41 Ill. 2d at 301 (sentencing court should consider

defendant’s “social environments” and “family”); see People v. Towns, 182 Ill. 2d

491, 518-19 (1998) (recognizing evidence that defendant had “troubled childhood”

and suffered from “parental abuse and neglect” as mitigating)); (4) his

rehabilitative potential (People v. Wilson, 143 Ill. 2d 236, 250 (1991) (recognizing

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defendant’s rehabilitative potential as mitigating); see Ill. Const. 1970, art. I, § 11

(“All penalties shall be determined both according to the seriousness of the offense

and with the objective of restoring the offender to useful citizenship.”)); (5) the

circumstances of the offense (730 ILCS 5/5-5-3.1(b) (West 2016) (sentencing court

must consider “the nature and circumstances of the offense”); People v. Saldivar,

113 Ill. 2d 256, 268-69 (1986) (same)); (6) the specific nature of his role in the

offense (Miller, 202 Ill. 2d at 341 (recognizing defendant’s less active or less

culpable role in offense as mitigating)); (7) whether the defendant was

meaningfully able to participate in his defense at trial (People v. Sandham, 174 Ill.

2d 379, 388-89 (1996); People v. Johnson, 183 Ill. 2d 176, 193-94 (1998)); (8) the

extent of his prior juvenile and criminal history (730 ILCS 5/5-5-3.1(a)(7) (West

2016) (lack of “history of prior delinquency or criminal activity” is mitigating); id.

§§ 5-3-1, 5-3-2(a)(1) (sentencing court must consider PSI, which must address

defendant’s “history of delinquency or criminality”)); and (9) any other relevant

and reliable evidence (People v. Richardson, 189 Ill. 2d 401, 417 (2000)).

¶ 75 At sentencing, the circuit court stated that it had considered the evidence

presented at trial, which included defendant’s age, the circumstances of the offense,

and defendant’s degree of participation and specific role in the offense, including

that defendant had accompanied the shooters but had not fired a weapon. The circuit

court stated that it had reviewed defendant’s PSI report, which revealed information

on defendant’s family, home environment, educational and social background,

including any history of parental neglect or childhood trauma, and juvenile history.

The circuit court thus considered that defendant, at the age of 15, attempted suicide

by hanging himself, underwent treatment in a two-week hospitalization for

depression, and turned 17 less than two weeks prior to the shooting in this case.

The PSI also revealed that defendant’s mother and father ended their relationship

when he was two years old, at which point he was raised primarily by his mother

and grandmother, and that defendant did not graduate from elementary school and

did not enroll in high school. The circuit court stated that it had considered the

statutory factors in aggravation and mitigation, the financial impact of

incarceration, the arguments of counsel, the victim impact statements, and

defendant’s statement in allocution. These sources presented defendant’s age,

impetuosity, level of maturity, potential for rehabilitation, circumstances of the

offense, degree of participation, and remorse. In defendant’s statement in

allocution, defendant indicated, at 21 years of age, that he was taking responsibility

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for his reckless behavior as a juvenile. Defendant’s letter in allocation indicated he

believed he was a reckless child who did not appreciate the risks involved with his

behavior at the time of the offense and that he had matured and wanted to move

away from Chicago, to attend college, and to live a productive life. He indicated

that he recognized the severity of what he had done and illustrated remorse and

accountability. Moreover, both at the initial sentencing hearing and when it later

reduced his sentence from 46 to 32 years, the circuit court stated that it was mindful

of defendant’s youth at the time of the offense.

¶ 76 Accordingly, we hold that the record reveals the circuit court’s consideration of

the factors found in section 5-4.5-105(a) of the Code prior to sentencing defendant,

and because we find no clear or obvious error, we find no plain error. “ ‘A

reviewing court gives great deference to the trial court’s judgment regarding

sentencing because the trial judge, having observed the defendant and the

proceedings, has a far better opportunity to consider these factors than the

reviewing court, which must rely on the “cold” record.’ ” People v. Alexander, 239

Ill. 2d 205, 212-13 (2010) (quoting People v. Fern, 189 Ill. 2d 48, 53 (1999)). This

court must not substitute its judgment for that of the trial court merely because it

would have weighed the factors differently. Id. at 213. Thus, we decline defendant’s

request to remand for resentencing.

¶ 77 CONCLUSION

¶ 78 For the foregoing reasons, we affirm the appellate court’s judgment, affirming

defendant’s convictions and sentence in the circuit court.

¶ 79 Judgments affirmed.

¶ 80 JUSTICE NEVILLE, dissenting:

¶ 81 The majority’s opinion legalizes investigative alerts and by doing so makes

arrests by police, without a warrant issued by a judge, the official policy of the

Chicago police. A reviewing court may take judicial notice of matters that are

reliably verifiable from sources of indisputable accuracy or from another court’s

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decisions, like the Appellate Court, First District’s, decisions. City of Chicago v.

Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 396 n.3 (2006) (courts may take judicial

notice of proceedings in other courts). I take judicial notice of First District

decisions, between 2007 and 2024, that discuss investigative alerts. Of 174 appeals,

173 involve Blacks and Latinos (see infra ¶ 196 (defendant Nos. 1 to 173)); 1

investigative alert involves a White person (see infra ¶ 196 (defendant No. 174)).

The cases reveal that 99% of the warrantless arrests made by Chicago police that

result in appeals involve Black and Latinx suspects. See infra ¶ 196 (defendant Nos.

1 to 174)). I find that the First District’s decisions establish that investigative alerts

are a systemic, racial policy or practice of Chicago police and that warrantless

arrests are used predominantly to effectuate the arrests of Black and Latinx

suspects. In light of the First District’s decisions, I cannot concur in the majority’s

decision because it legalizes a systemic, racial policy or practice that authorizes the

Chicago police to make warrantless arrests based on race. Therefore, because the

First District’s decisions establish that the majority’s opinion will authorize

systemic, racial policies or practices and will legalize warrantless arrests of Black

and Latinx suspects by the Chicago police, I respectfully dissent.

¶ 82 Additionally, I dissent for the following reasons: (1) because, absent exigent

circumstances, the United States and Illinois Constitutions do not permit

warrantless arrests in the home but Clark, with no exigent circumstances, was

arrested without a warrant in his home; (2) because the Illinois Constitution only

permits warrantless arrests when there are exigent circumstances and there were no

exigent circumstances in Clark’s case; (3) because the Illinois Constitution only

permits a judge to make probable cause determinations and to issue warrants for a

suspect’s arrest, but in this case the police made an extrajudicial determination

about whether there was probable cause to arrest Clark and issued an investigative

alert (an extrajudicial police warrant), which authorized the police to arrest Clark;

(4) because the disparate impact of the use of investigative alerts demonstrates that

the police ignore the constitution and treat Blacks and Latinx suspects like they

have no rights the police must respect (see Dred Scott v. Sanford, 60 U.S. 393

(1856)) and establish that police appear to use judicial warrants when they arrest

White suspects, but they arrest Black and Latinx suspects in a separate but unequal

system of using investigative alerts (see Plessy v. Ferguson, 163 U.S. 537 (1896));

and (5) because the First District’s decisions establish that investigative alerts are a

policy or practice of the Chicago police where the police enforce the warrant

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requirement in the constitutions differently based on whether they are arresting a

White suspect or a Black or a Latinx suspect and as a consequence of this disparate

treatment, the Chicago police violate the 2018 consent decree (see Consent Decree,

Illinois v. City of Chicago, No. 17-cv-6260, at 15-16 (N.D. Ill. Jan. 31, 2019),

https://www.chicago.gov/content/dam/city/depts/cpb/supp_info/ConsentDecree

Complete.pdf [https://perma.cc/78H6-YRQB]), a contract made to protect Black

and Latinx suspects from unconstitutional arrests.

¶ 83 I. BACKGROUND

¶ 84 Police spoke with Cragg Hardaway shortly after a shooting incident on July 19,

2013. Police detained Hardaway overnight on July 20, 2013, and brought him to

testify before a grand jury on July 21, 2013. Also on July 21, 2013, based on

Hardaway’s statements, police issued an investigative alert that told all officers they

had probable cause to arrest Clark. Three days after the shooting, on July 22, 2013,

police drove to Clark’s home and arrested him. Clark filed a motion to quash the

arrest and suppress any evidence obtained as a result of the arrest. Clark claimed

the warrantless arrest violated his rights under the fourth amendment to the United

States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois

Constitution of 1970 (Ill. Const. 1970, art. I, § 6).

¶ 85 At the hearing on the motion, Chicago police officer Patrick Kinney testified

that on July 22, 2013, he went to Clark’s home. A man answered Kinney’s knock.

Kinney said he had probable cause to arrest Clark. The man opened the door and

pointed to a back bedroom, where Kinney could see Clark. Kinney, still on the

threshold, told Clark he had “a probable cause investigative alert for his arrest.”

Clark said, “Okay, let me get some clothes.” Kinney admitted he “did not have

consent to go inside the house” but he entered the residence anyway because he did

not “know what [defendant] was going to grab.” The trial court denied the motion

to suppress, and the appellate court affirmed, holding that warrantless arrests based

on investigative alerts do not violate either the state or the federal constitution, as

long as police have probable cause to arrest. 2021 IL App (1st) 180523-U, ¶¶ 80-

84.

¶ 86 II. THE MAJORITY’S ANALYSIS

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¶ 87 The majority starts its analysis with a cursory dismissal of Clark’s argument

that police violated his constitutional rights by arresting him in his home without a

warrant, finding the argument forfeited. Supra ¶¶ 31-33. Then, applying the

lockstep doctrine adopted in People v. Caballes, 221 Ill. 2d 282, 288-317 (2006),

the majority holds that United States v. Watson, 423 U.S. 411 (1976), supplies a

binding interpretation of the Illinois Constitution’s warrant requirement. Supra

¶¶ 55-63. The majority holds that, under Watson, police did not violate Clark’s

constitutional rights because they had probable cause when they arrested Clark on

July 22, 2013. Supra ¶ 35.

¶ 88 III. ANALYSIS

¶ 89 I disagree (1) with the finding that Clark forfeited his argument that police

violated his constitutional rights by arresting him in his home, (2) with the

majority’s conclusions that this court should follow the lockstep doctrine, and

(3) with the holding that the Watson Court’s interpretation of the fourth amendment

binds this court’s interpretation of article I, section 6, of the Illinois Constitution.

¶ 90 First, I would find the home arrest issue sufficiently preserved. Second, I find

the State’s evidence, which the trial court explicitly found credible, shows that the

warrantless arrest took place in Clark’s home and that the putative consent,

following the arrest, did not validate the arrest. Third, I agree with the justices and

commentators who reject the lockstep doctrine. Fourth, this court should reassess

Watson and find that it misrepresents the history of the fourth amendment and

misinterprets the amendment in a manner that subverts its fundamental purpose,

resurrecting general warrants, under which “[p]ersons and places were not

necessarily specified, seizure of papers and effects was indiscriminate, [and]

everything was left to the discretion of the bearer of the warrant.” Nelson B. Lasson,

The History and Development of the Fourth Amendment to the United States

Constitution 26 (Leonard W. Levy ed., De Capo Press 1970). Fifth, I analyze article

I, section 6, of the Illinois Constitution and find that its purpose and its history

support a finding that police may make warrantless arrests only when there are

exigent circumstances or when they actually witness a crime. Finally, I have

examined the racially disparate impact of the use of investigative alerts by Chicago

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police and find that the policy and practice violate the City of Chicago’s duties

under the consent decree entered in federal court in 2018.

¶ 91 A. The Warrantless Arrest of Clark in His Home

Violated His Constitutional Rights

¶ 92 1. Forfeiture

¶ 93 The majority finds that Clark forfeited his argument that the arrest in his home

violated the United States and Illinois Constitutions. The majority does not address

Clark’s argument that the issue of the arrest in the home falls under the

constitutional issue exception to the forfeiture rule.

¶ 94 Constitutional issues that defense counsel raised at trial that the defendant could

later raise in a postconviction petition are not subject to forfeiture on direct appeal.

People v. Almond, 2015 IL 113817, ¶ 54.

“[W]hen, as here, a defendant fails to raise a constitutional issue in a posttrial

motion but the issue was raised at trial and could be raised in a postconviction

petition ‘the interests in judicial economy favor addressing the issue on direct

appeal rather than requiring defendant to raise it in a separate postconviction

petition.’ ” Id. (quoting People v. Cregan, 2014 IL 113600, ¶ 18).

¶ 95 Almond and Cregan apply here. Clark argued in his motion to quash that his

arrest in his home violated his constitutional right to be “secure in [his] person[ ]

*** against unreasonable *** seizures.” Ill. Const. 1970, art. I, § 6; U.S. Const.,

amend. IV. The issue is not subject to forfeiture on direct appeal. Almond, 2015 IL

113817, ¶ 54.

¶ 96 2. Standard of Review

¶ 97 The State contends we must limit our consideration of the constitutional issue

to plain error review. But when this court has applied the constitutional issue

exception to the forfeiture rule, it treats the constitutional issue as preserved.

Almond, 2015 IL 113817, ¶ 54; Cregan, 2014 IL 113600, ¶¶ 18-23. Following

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Almond and Cregan, this court should review the constitutionality of Clark’s arrest

under standards applicable to preserved issues.

¶ 98 Thus, under the applicable standard, this court should defer to the trial court’s

findings of fact on the motion to quash arrest, but the court should review de novo

the trial court’s legal conclusions. People v. Jones, 215 Ill. 2d 261, 268 (2005);

In re D.G., 144 Ill. 2d 404 (1991).

¶ 99 3. No Exigent Circumstances Validate the Warrantless Arrest

¶ 100 Police arrested Hardaway, the State’s identification witness, on July 20, 2013,

the day after the shooting. Early on July 21, 2013, Hardaway made the statements

that, according to the majority, gave police probable cause to arrest Clark. Supra

¶ 62. Two days after the shooting, police could not claim hot pursuit impelled them

to arrest Clark without a warrant. See People v. Abney, 81 Ill. 2d 159, 170 (1980)

(“a case involving a warrantless entry of a suspect’s residence four hours after a

robbery *** ‘was not a case of hot pursuit, unless that term is to be stretched beyond

all reasonable meaning’ ” (quoting Dorman v. United States, 435 F.2d 385, 393

(D.C. Cir. 1970) (en banc))).

¶ 101 Police then presented Hardaway to a grand jury on July 21, 2013, and also

obtained an investigative alert with probable cause to arrest that same day. The

State has not argued that exigent circumstances excused Clark’s warrantless arrest

on July 22, 2013, three days after the shooting. I would find that the police made

the warrantless arrest without exigent circumstances. See id. at 169-70 (exigent

circumstances excuse a warrantless arrest if delay to obtain a warrant would impede

investigation and provide the suspect time to avoid capture).

¶ 102 4. Police Arrested Clark in His Home

¶ 103 Clark argues that Kinney arrested him in his home without a warrant. The State

argues that Kinney arrested Clark on the back porch of his aunt’s apartment, in a

public place outside Clark’s home, or, if Kinney arrested Clark in his home, that

the arrest came after Kinney obtained consent to enter the home. We review de novo

the trial court’s legal conclusions as to where and when the arrest occurred. People

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v. Luedemann, 222 Ill. 2d 530, 542-44 (2006); People v. Hill, 2012 IL App (1st)

102028, ¶ 36 (“the fact of when an arrest occurs is a legal conclusion”); United

States v. Tovar-Valdivia, 193 F.3d 1025, 1027 (8th Cir. 1999) (“Whether a

particular seizure amounted to an arrest is a question of law that this court reviews

de novo.”).

¶ 104 In determining when the police placed a person under arrest, the court should

consider “whether a reasonable person, innocent of any crime, would have

considered himself arrested or free to leave; the intent of the officer and the

understanding of the arrestee; and whether the defendant was told he was free to

leave or that he was under arrest.” People v. Fair, 159 Ill. 2d 51, 66 (1994). For

juveniles, like Clark, the reasonable person standard is modified to take the

juvenile’s youth into account. In re D.L.H., 2015 IL 117341, ¶ 51 (citing People v.

Braggs, 209 Ill. 2d 492, 508-10 (2003)). That is, the court should consider whether

a reasonable juvenile, innocent of any crime, would have considered himself

arrested.

¶ 105 Kinney announced at the door to Clark’s home that he came to arrest Clark. A

reasonable juvenile, innocent of any crime, would have considered himself

arrested. “ ‘An arrest requires either physical force *** or, where that is absent,

submission to the assertion of authority.’ ” (Emphases in original.) People v.

Thomas, 198 Ill. 2d 103, 112 (2001) (quoting California v. Hodari D., 499 U.S.

621, 626 (1991)). Under the Fair factors, the arrest occurred when Clark submitted

to Kinney’s assertion of authority by saying, “Okay.” Thus, the arrest occurred

while Kinney stood outside the house and announced the arrest, when Clark, inside

his home, submitted to Kinney’s authority.

¶ 106 Although courts have reached differing conclusions as to whether an arrest

across the threshold counts as an arrest in the home, the more persuasive cases find

that the fourth amendment requires a warrant for such arrests. In United States v.

Allen, 813 F.3d 76, 78 (2d Cir. 2016), police, with ample probable cause but no

warrant, went to Allen’s home to arrest him. Allen answered the door when police

knocked. Id. at 79. Police, outside the door, told Allen they would take him to the

police station for processing in connection with allegations Allen committed an

assault. Id. Allen acquiesced to the officers, and after Allen acquiesced, the officers

went inside the home and saw evidence that led them to find a firearm. Id. Allen

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filed a motion to quash the warrantless arrest and suppress the evidence found as a

result of the arrest. Id. The district court denied the motion. Id. at 79-80.

¶ 107 The Court of Appeals for the Second Circuit noted that the United States

Supreme Court expressly “ ‘refused to lock the Fourth Amendment into instances

of actual physical trespass.’ ” Id. at 82 (quoting United States v. United States

District Court, 407 U.S. 297, 313 (1972)). The Allen court held:

“If the rule of Payton, and the fundamental Fourth Amendment protection of

the home on which it is based, are to retain their vitality, the rule must turn on

the location of the defendant, not the officers, at the time of the arrest. We

therefore hold that irrespective of the location or conduct of the arresting

officers, law enforcement may not cause a suspect to open the door of the home

to effect a warrantless arrest of a suspect in his home in the absence of exigent

circumstances.” Id. at 85.

¶ 108 Several courts and commentators have agreed with the reasoning of Allen. “[I]t

is the location of the arrested person, and not the arresting agents, that determines

whether an arrest occurs within a home.” United States v. Johnson, 626 F.2d 753,

757 (9th Cir. 1980); see Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997),

abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir.

2007); United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984); United States

v. Reeves, 524 F.3d 1161, 1165 (10th Cir. 2008); People v. Lujano, 176 Cal. Rptr.

3d 534, 544 (Ct. App. 2014); Smith v. State, 531 A.2d 302, 308-09 (Md. Ct. Spec.

App. 1987); State v. Peters, 695 S.W.2d 140, 146-47 (Mo. Ct. App. 1985); State v.

George, 317 N.W.2d 76, 80 (Neb. 1982); State v. Morse, 480 A.2d 183 (N.H.

1984); State v. Holeman, 693 P.2d 89, 91 (Wash. 1985) (en banc); Jennifer Marino,

Does Payton Apply: Absent Consent or Exigent Circumstance, Are Warrantless,

In-Home Police Seizures and Arrests of Persons Seen Through an Open Door of

the Home Legal?, 2005 U. Chi. Legal F. 569 (2005); Caroline Hunt, Casenote,

Reaching Across the Threshold of the Fourth Amendment—Why Payton v. New

York Should Be Interpreted Broadly, 70 SMU L. Rev. 189 (2017).

¶ 109 Clark stood in his home when he acquiesced to Kinney’s assertion of his power

to arrest Clark. In accord with Allen, Johnson, and the cases and commentators who

hold that the location of the person arrested determines whether the arrest

constitutes an arrest in the home, I conclude that the warrantless arrest took place

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in Clark’s home.

¶ 110 5. The Evidence of Postarrest Consent Does

Not Validate the Warrantless Arrest in Clark’s Home

¶ 111 The majority claims that the warrantless arrest in Clark’s home did not violate

the fourth amendment because Kinney obtained consent to enter Clark’s home.

Supra ¶¶ 32-33. And the majority does not acknowledge that the putative

consensual entry occurred only after the arrest. See Thomas, 198 Ill. 2d at 112

(seizure occurs when a defendant yields to an officer’s assertion of authority).

¶ 112 Only voluntary consent validates a warrantless entry. People v. Simpson, 172

Ill. 2d 117, 143-44 (1996); United States v. Reed, 572 F.2d 412, 423 n.9 (2d Cir.

1978). “[A]cquiescence to a claim of lawful authority” does not constitute

voluntary consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); see

People v. Davis, 398 Ill. App. 3d 940, 956 (2010) (“Consent is involuntary where

it is solely the result of acquiescence or submission to the assertion of lawful police

authority.”); People v. Johnson, 99 Ill. App. 3d 863, 865-66 (1981).

¶ 113 Kinney’s testimony establishes that, after he announced that he had probable

cause to arrest Clark, (1) the man who answered the door stepped aside, acquiescing

to Kinney’s authority, and (2) Clark acquiesced by saying “Okay.” The alleged

subsequent consent cannot validate this warrantless arrest.

¶ 114 6. The Warrantless Arrest in Clark’s Home Violated the

State and Federal Constitutions

¶ 115 Police arrested Clark in his home without a warrant and without exigent

circumstances, in violation of Clark’s rights under the fourth amendment to the

United States Constitution (see Payton v. New York, 445 U.S. 573, 588-89 (1980)

(except in exigent circumstances, a warrantless arrest in the home violates the

fourth amendment)) and article I, section 6, of the Illinois Constitution (see People

v. Williams, 161 Ill. 2d 1 (1994) (adopting Payton)). In Coolidge v. New Hampshire,

403 U.S. 443, 450 (1971), the United States Supreme Court held that agents of the

State, like the Chicago police officers here, lack authority to issue valid search or

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arrest warrants. Therefore, this court should reverse Clark’s convictions and

remand for retrial without any evidence obtained as a result of the unconstitutional

arrest.

¶ 116 B. The Use of Investigative Alerts Violates

Article I, Section 6, of the Illinois Constitution

¶ 117 1. Lockstep

¶ 118 Clark separately argues that the warrantless arrest here violated the Illinois

Constitution because no exigency or other circumstance excused the failure to

obtain a warrant. The majority holds that, under Watson, 423 U.S. 411, the arrest

did not violate the fourth amendment to the federal constitution and therefore it

cannot violate the Illinois Constitution. Supra ¶¶ 55-63. The majority relies on

Caballes, 221 Ill. 2d 282, where this court adopted the “limited lockstep” doctrine,

holding that decisions of the United States Supreme Court interpreting the United

States Constitution bind this court’s interpretation of similar provisions in the

Illinois Constitution, unless one of a small set of narrowly defined exceptions

applies. The majority in Caballes discussed and rejected “ ‘flawed federal

analysis’ ” (id. at 308 (quoting State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M.

777, 932 P.2d 1); id. at 312-13) as a basis for choosing not to adopt the United

States Supreme Court’s interpretation of the federal constitution as a binding

interpretation of the Illinois Constitution.

¶ 119 a. The United States Supreme Court Has Misinterpreted

the United States Constitution

¶ 120 The United States Supreme Court itself has recognized that, in a significant

number of cases, the United States Supreme Court has misinterpreted the United

States Constitution. The Court found that it erred in its interpretation of the

constitution in Twining v. New Jersey, 211 U.S. 78 (1908), overruled by Malloy v.

Hogan, 378 U.S. 1, 2, 6 (1964); Betts v. Brady, 316 U.S. 455 (1942), overruled by

Gideon v. Wainwright, 372 U.S. 335, 345 (1963); Michigan v. Jackson, 475 U.S.

625 (1986), overruled by Montejo v. Louisiana, 556 U.S. 778, 798 (2009); Ohio v.

Roberts, 448 U.S. 56 (1980), overruled by Crawford v. Washington, 541 U.S. 36

- 41 -

(2004); Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536

U.S. 584, 589 (2002); Crooker v. California, 357 U.S. 433 (1958), overruled by

Miranda v. Arizona, 384 U.S. 436, 479 n.48 (1966); Wolf v. Colorado, 338 U.S. 25

(1949), overruled by Mapp v. Ohio, 367 U.S. 643, 653 (1961); Gitlow v. New York,

268 U.S. 652 (1925), overruled by Dennis v. United States, 341 U.S. 494, 507

(1951); Goesaert v. Cleary, 335 U.S. 464 (1948), overruled by Craig v. Boren, 429

U.S. 190, 210 n.23 (1976); National League of Cities v. Usery, 426 U.S. 833 (1976),

overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528,

557 (1985); Olmstead v. United States, 277 U.S. 438 (1928), overruled by Katz v.

United States, 389 U.S. 347, 352-53 (1967); Booth v. Maryland, 482 U.S. 496

(1987), overruled by Payne v. Tennessee, 501 U.S. 808, 825 (1991); Grovey v.

Townsend, 295 U.S. 45 (1935), overruled by Smith v. Allwright, 321 U.S. 649, 665-

66 (1944); Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v.

Kentucky, 476 U.S. 79 (1986); Korematsu v. United States, 323 U.S. 214 (1944),

overruled by Trump v. Hawaii, 585 U.S. 667, 710 (2018); and Plessy, 163 U.S. 537,

overruled by Brown v. Board of Education of Topeka, 347 U.S. 483, 494-95 (1954).

¶ 121 The United States Supreme Court took more than 50 years to overrule the

mistaken constitutional rulings it imposed on the country in Korematsu and Plessy.

The United States Supreme Court never overruled its decision in Dred Scott, 60

U.S. at 406—the citizens of this country relieved themselves of the error by

adopting the thirteenth, fourteenth, and fifteenth amendments to the United States

Constitution (U.S. Const., amends. XIII, XIV, XV). See Jamison v. McClendon,

476 F. Supp. 3d 386, 397-98 (S.D. Miss. 2020). This court must not inflict the

United States Supreme Court’s errors on the citizens of Illinois when this court has

the power to independently interpret the Illinois Constitution.

¶ 122 b. This Court Should Treat Federal Opinions Interpreting the

United States Constitution as Persuasive, Not

Binding, Authority

¶ 123 For the reasons stated in my dissent in People v. Sneed, 2023 IL 127968, ¶¶ 133-

68 (Neville, J., dissenting), and for the reasons stated by Justice Simon, Justice

Freeman, Justice Clark, Justice Heiple, Justice Nickels, and Justice Goldenhersh in

the opinions I cited in that dissent, as well as the reasons stated by the scholars cited

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in that dissent, this court must recognize its responsibility as the final interpreter of

the Illinois Constitution and treat United States Supreme Court decisions

interpreting the United States Constitution as persuasive authority, following the

United States Supreme Court when its reasoning persuades us and not following

decisions that do not persuade us. See State v. Gaskins, 866 N.W.2d 1, 6 (Iowa

2015); State v. Hempele, 576 A.2d 793, 800 (N.J. 1990); Parker v. Commonwealth,

440 S.W.3d 381, 388 (Ky. 2014); William J. Brennan Jr., The Bill of Rights and the

States: The Revival of State Constitutions as Guardians of Individual Rights, 61

N.Y.U. L. Rev. 535, 550-51 (1986).

¶ 124 Insofar as Caballes imposed limited lockstep on Illinois, requiring Illinois

courts to follow United States Supreme Court decisions interpreting the constitution

in most circumstances, this court should overrule Caballes. Accordingly, this court

should regard Watson not as a binding interpretation of article I, section 6, but as

authority the State cites for its persuasive force.

¶ 125 Once we recognize that United States Supreme Court opinions interpreting the

United States Constitution provide only persuasive, not binding, authority in

interpreting cognate provisions of the Illinois Constitution, we should determine

whether this court should adopt the Watson majority’s holding as our interpretation

of article I, section 6.

¶ 126 2. Watson Does Not Persuasively Interpret the

Illinois Constitution’s Limitation on Arrests

¶ 127 a. The Watson Majority Misrepresented Fourth

Amendment History

¶ 128 The Watson majority defended its decision as an interpretation of the intention

of the original delegates who adopted the fourth amendment to the United States

Constitution. Watson, 423 U.S. at 418-23.

¶ 129 When the United States adopted the Bill of Rights, anyone, including a peace

officer, could arrest a person if a crime punishable by total forfeiture of the

offender’s lands or goods or death had occurred (see 4 William Blackstone,

Commentaries *95) and the arrester “ha[d] reasonable cause for believing the

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person arrested to have committed it.” Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547, 628 (1999) (hereinafter Davies,

Recovering).

¶ 130 In a work of sophistry, the Watson majority transmogrified the extremely

limited common-law authorization for warrantless arrests into an extremely general

authorization for warrantless arrests for any offense now punishable by at least one

year in prison—because legislatures have classified such offenses as “felonies” (see

18 U.S.C. § 1(1) (1970)), the same term used for the very different and far more

limited set of crimes that justified loss of all lands or goods or imposition of the

death penalty. See Watson, 423 U.S. at 438-40 (Marshall, J. dissenting, joined by

Brennan, J.).

¶ 131 Scholars have concluded that the framers intended to restrict severely the

authority of officers to make warrantless arrests. See William John Cuddihy, The

Fourth Amendment: Origins and Original Meaning, at civ (1990) (“[u]nless some

emergency was involved that precluded the use of a warrant, specific warrants were

mandatory”); Lasson, supra, at 120; Anthony G. Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev. 349, 396-97 & nn.443-47 (1974); Davies,

Recovering, at 552.

¶ 132 Thus, if the Watson majority intended to interpret the fourth amendment to

uphold the framers’ understanding of the common law at the time of the

amendment’s adoption, the court would have held that police officers may arrest an

individual without a warrant only if the officer saw the individual commit the

offense or if the officer had probable cause to believe the individual committed one

of the few crimes punishable by complete forfeiture of all one’s lands or goods or

by death. See Shima Baradaran Baughman, The History of Misdemeanor Bail, 98

B.U. L. Rev. 837, 845 n.61 (2018) (listing the common-law felonies at the time of

the adoption of the United States Constitution); Horace L. Wilgus, Arrest Without

a Warrant, 22 Mich. L. Rev. 541 (1924). It should be noted that the crime at issue

in Watson would have required a warrant under the common law, as would the

crime at issue here. See Davies, Recovering, at 630 n.220.

¶ 133 The Watson majority then misrepresented prior holdings (see Watson, 423 U.S.

at 426 n.1 (Powell, J., concurring)) and reached its conclusion that “an arrest in a

public place for a previously committed felony never requires a warrant, a result

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certainly not fairly supported by either history or precedent.” United States v.

Martinez-Fuerte, 428 U.S. 543, 568 (1976) (Brennan, J., dissenting, joined by

Marshall, J.).

¶ 134 b. Watson Eviscerates the Fourth Amendment

¶ 135 The federal constitution’s framers adopted the fourth amendment “to safeguard

the privacy and security of individuals against arbitrary invasions by governmental

officials.” People v. Dilworth, 169 Ill. 2d 195, 201 (1996); see King v. Ryan, 153

Ill. 2d 449, 464 (1992). “The historical judgment, which the Fourth Amendment

accepts, is that unreviewed executive discretion may yield too readily to pressures

to obtain incriminating evidence and overlook potential invasions of privacy ***.”

United States District Court, 407 U.S. at 317; see Morgan Cloud, Searching

Through History; Searching for History, 63 U. Chi. L. Rev. 1707 (1996).

¶ 136 “The Founding generation crafted the Fourth Amendment as a ‘response to the

reviled “general warrants” and “writs of assistance” of the colonial era.’ ”

Carpenter v. United States, 585 U.S. 296, 303 (2018) (quoting Riley v. California,

573 U.S. 373, 403 (2014)). “[T]he reason the Framers feared and banned general

warrants was precisely because such warrants purported to confer discretionary

authority on the officers who held them.” Thomas Y. Davies, The Fictional

Character of Law-and-Order Originalism: A Case Study of the Distortions and

Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest

L. Rev. 239, 399 (2002) (hereinafter Davies, Fictional Character) (citing 2 Legal

Papers of John Adams, at 140-43 (L. Kinvin Wroth & Hiller B. Zobel eds., Belknap

Press 1965)).

¶ 137 Watson and other fourth amendment decisions “mark[ ] the continuing

evisceration of Fourth Amendment protections against unreasonable searches and

seizures.” Martinez-Fuerte, 428 U.S. at 567 (1976) Brennan, J, dissenting. “[T]he

assault on our basic liberties and freedoms by government itself has become a ***

serious and potentially destructive social problem.” People v. Mitchell, 165 Ill. 2d

211, 235 (1995) (Heiple, J., dissenting). “[T]he Fourth Amendment and the rest of

the Bill of Rights were created to protect individuals from the government abuses

of old England—abuses that have reemerged, in substantial part, because of Watson

and Terry.” Ryan Miller, Note, The Enduring Value of the Past: Why History

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Suggests the Supreme Court Reconsider Watson, Terry, and the Doctrine That

Followed, 59 Harv. C.R.-C.L. L. Rev. 465, 484 (2024).

¶ 138 Davies summarized the effect of the Supreme Court’s fourth amendment

decisions:

“the practical result of the discretionary arrest authority *** is that ‘the liberty

of every [person is placed] in the hands of every petty officer’ and every petty

officer is positioned to ‘lord it over’ the citizen. *** [The fourth amendment

decisions] empower[ ] petty officers to act with the sort of unfettered,

‘tyrannical’ power the Framers thought they had prohibited in the Fifth and

Fourth Amendments.” Davies, Fictional Character, at 400 (quoting 2 Legal

Papers of John Adams, at 142).

“The type of policing enabled by Terry and its progeny resembles the general

warrants and writs of assistance that the Framers ‘outspokenly opposed.’ ” Miller,

supra, at 518 (quoting Watson, 423 U.S. at 429 (Powell, J., concurring)). The

Watson decision gives police a general warrant to arrest anyone whenever police

officers themselves conclude they have probable cause to believe the suspect

committed a felony—Watson is the general warrant the constitution’s framers

sought to ban.

¶ 139 Wayne LaFave aptly reflected,

“given the pervasiveness of such minor offenses and the ease with which law

enforcement agents may uncover them in the conduct of virtually everyone, [if

such pretexts are allowed,] *** there exists [on the part of law enforcement

agents] ‘a power that places the liberty of every man in the hands of every petty

officer,’ precisely the kind of arbitrary authority which gave rise to the Fourth

Amendment.” 1 Wayne R. LaFave, Search and Seizure § 1.4(e), at 123 (3d ed.

1996) (quoting 2 Legal Papers of John Adams, at 142).

This court should reject the Watson Court’s resurrection of general warrants and its

subversion of the fourth amendment.

¶ 140 3. Article I, Section 6

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¶ 141 Because this court should find that Watson does not provide a persuasive

interpretation of article I, section 6, this court should look to other sources for

construction of that section. Article I, section 6, of the Illinois Constitution of 1970

provides:

“The people shall have the right to be secure in their persons, houses, papers

and other possessions against unreasonable searches, seizures, invasions of

privacy or interceptions of communications by eavesdropping devices or other

means. 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.” Ill. Const. 1970, art. I, § 6.

¶ 142 We use the same general principles that apply to statutes when we interpret the

constitution. Kanerva v. Weems, 2014 IL 115811, ¶ 36. We seek to “give effect to

the common understanding of the citizens who adopted it.” Blanchard v. Berrios,

2016 IL 120315, ¶ 16. We look first to the plain language used in its natural and

popular meaning when the constitutional provision was adopted. Rowe v. Raoul,

2023 IL 129248, ¶ 21. If the plain language does not answer the question presented,

we interpret the words “ ‘in light of the history and condition of the times, and the

particular problem which the convention sought to address.’ ” Kanerva, 2014 IL

115811, ¶ 36 (quoting Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 216 (1979)).

¶ 143 a. Article I, Section 6, Does Not Expressly Answer the

Question Before Us

¶ 144 In one sentence article I, section 6, bans unreasonable seizures; in the second

sentence the section restricts the issuance of warrants. The fourth amendment has

two similar, separate clauses in a single sentence. Neither constitutional provision

expressly answers the question before us, namely, whether a police officer must

obtain a warrant to render an arrest reasonable under each respective constitution—

or, conversely, whether it is “unreasonable” to arrest a person without a warrant

issued by a neutral and detached magistrate.

¶ 145 Ultimately, we must determine what limitations on police power the citizens of

Illinois intended to impose when they adopted article I, section 6, of the Illinois

Constitution. We make that determination by looking to the purpose and history of

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the constitutional provision, by balancing the government’s interest in the intrusion

against the individual’s interest in protection against the intrusion, and by reviewing

other persuasive authority. See id.; see, e.g., People v. Boeckmann, 238 Ill. 2d 1,

11-12 (2010) (in considering constitutional issues, this court may look to the

decisions of sister states as persuasive authority). When looking at each of these

considerations the answer becomes clear: except in exigent circumstances, an arrest

made without a warrant is an unreasonable seizure under article I, section 6, of the

Illinois Constitution.

¶ 146 b. Purpose of Article I, Section 6

¶ 147 The delegates to the constitutional convention adopted article I, section 6, “ ‘to

safeguard the privacy and security of individuals against arbitrary invasions’ ” by

governmental officials. People v. Colyar, 2013 IL 111835, ¶ 31 (quoting People v.

McDonough, 239 Ill. 2d 260, 266 (2010)). Its purpose largely matches the purpose

of the fourth amendment. Article I, section 6, like the fourth amendment, addresses

“standardless and unconstrained discretion [as] the evil the Court has discerned

when in previous cases it has insisted that the discretion of the official in the field

be circumscribed.” Delaware v. Prouse, 440 U.S. 648, 661 (1979).

¶ 148 c. The History of Article I, Section 6

¶ 149 John Dvorak, the delegate to the Sixth Illinois Constitutional Convention who

drafted article I, section 6, of the Illinois Constitution, explained that section 6

introduces “no new concepts” regarding search and seizure. 3 Record of

Proceedings, Sixth Illinois Constitutional Convention 1524 (statements of Delegate

Dvorak). Dvorak referred to Katz, 389 U.S. 347, as established law. 3 Record of

Proceedings, Sixth Illinois Constitutional Convention 1525 (statements of Delegate

Dvorak). The United States Supreme Court, in Katz, reasserted the general

principle:

“Searches conducted without warrants have been held unlawful

‘notwithstanding facts unquestionably showing probable cause,’ [citation], for

the Constitution requires that the deliberate, impartial judgment of a judicial

officer . . . be interposed between the citizen and the police . . . . [Citation.] Over

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and again this Court has emphasized that the mandate of the [Fourth]

Amendment requires adherence to judicial processes, [citation], and that

searches conducted outside the judicial process, without prior approval by judge

or magistrate, are per se unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.” (Internal

quotation marks omitted.) Katz, 389 U.S. at 357.

¶ 150 In 1970, the prevailing interpretation of the Fourth Amendment applied the

warrant requirement to nearly all searches and seizures. Silas J. Wasserstrom, The

Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 257-58

(1984); see Nadine Strossen, The Fourth Amendment in the Balance: Accurately

Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L.

Rev. 1173, 1193 (1988).

¶ 151 In accord with the conventional interpretation of search and seizure law, as

courts understood the law in 1970, Dvorak said that under article I, section 6,

“for a governmental officer—a police officer—to obtain [an] *** arrest

warrant—they have to go before a judicial officer to determine in fact that there

is probable cause for the *** seizure, support that by affidavit, and describe the

*** persons *** to be seized. Then, and only then, is it legal ***.” 3 Record of

Proceedings, Sixth Illinois Constitutional Convention 1524 (statements of

Delegate Dvorak).

¶ 152 The history of article I, section 6, supports the conclusion that the delegates who

approved the inclusion of the article in the draft constitution understood it to require

police to obtain a warrant before making an arrest, unless exigent circumstances or

another narrow exception to the warrant requirement excused the lack of a warrant.

¶ 153 d. Balancing Test

¶ 154 When this court has interpreted article I, section 6, in prior decisions, we have

balanced the government’s interest in the intrusion against the individual’s interest

in protection against the intrusion. “Decisions involving *** the Illinois

Constitution’s article I, section 6, require that we carefully balance the legitimate

aims of law enforcement against the right of our citizens to be free from

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unreasonable governmental intrusion.” People v. Tisler, 103 Ill. 2d 226, 245 (1984).

Like the United States Supreme Court in its application of the fourth amendment,

we balance the competing interests on a categorical basis. Michigan v. Summers,

452 U.S. 692, 705 n.19 (1981) (applying balancing test categorically); see People

v. Krueger, 175 Ill. 2d 60, 75 (1996) (Illinois’s test for search and seizure is like the

United States Supreme Court’s balancing test).

¶ 155 i. Police Warrants—Investigative Alerts

¶ 156 Chicago Police Department (CPD) Special Order S04-16, issued December 18,

2018, shows that the CPD officially makes a practice of arresting on the basis of

investigative alerts. See Chi. Police Dep’t, Investigative Alerts, Special Order S04-

16 (eff. Dec. 18, 2018), https://directives.chicagopolice.org/#directive/public/6332

[https://perma.cc/NJ3T-TDYM]; People v. Smith, 2022 IL App (1st) 190691, ¶ 12

(Chicago police officer testified that he did not try to obtain an arrest warrant

because “ ‘it is not common practice’ ”). Accordingly, this court should apply the

balancing test to the practice of arresting individuals on the basis of investigative

alerts, without seeking approval of a neutral magistrate prior to the arrest. The court

should determine “whether the needs of citizens for privacy *** may not be better

protected by requiring a warrant before” the arrest. United States District Court,

407 U.S. at 315.

¶ 157 ii. Exigent Circumstances Exception

¶ 158 The State argues that requiring warrants, except in exigent circumstances, will

substantially undermine the State’s ability to enforce the law. The State and amici

do not address the effect of Illinois laws permitting police officers to obtain judicial

warrants quickly. The Code of Criminal Procedure of 1963 provides:

“The arrest warrant or summons may be issued electronically or

electromagnetically by use of electronic mail or a facsimile transmission

machine and any such arrest warrant or summons shall have the same validity

as a written arrest warrant or summons.” 725 ILCS 5/107-9(h) (West 2022).

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¶ 159 The State and amici do not contend that the process for obtaining investigative

alerts takes less time than the process for obtaining warrants electronically as

permitted by section 107-9(h). Courts have responded quickly to electronic requests

for warrants. See Tracy Hresko Pearl, On Warrants & Waiting: Electronic

Warrants & the Fourth Amendment, 99 Ind. L.J. 1, 2-3 (2023). “It can take up to a

full day for a supervisor to approve the request for an investigative alert.” People

v. Bass, 2019 IL App (1st) 160640, ¶ 68, aff’d in part & vacated in part, 2021 IL

125434. I do not see any timing benefit, or any other clear benefit (supra ¶ 54), to

the people of Illinois from the practice of using investigative alerts, issued by police

officers, instead of arrest warrants issued by courts, when police effectuate arrests.

¶ 160 iii. Benefits of Judicial Warrants

¶ 161 I find that the people of Illinois would benefit from a general practice of

requiring judicially approved warrants for arrests. See Johnson v. United States,

333 U.S. 10, 14-15 (1948). The United States Supreme Court’s explanation of the

fourth amendment also explains Illinois’s constitutional warrant requirement:

“The point of the Fourth Amendment, which often is not grasped by zealous

officers, is not that it denies law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its protection consists in requiring

that those inferences be drawn by a neutral and detached magistrate instead of

being judged by the officer engaged in the often competitive enterprise of

ferreting out crime. Any assumption that evidence sufficient to support a

magistrate’s disinterested determination to issue a search warrant will justify

the officers in making a search without a warrant would reduce the Amendment

to a nullity and leave the people’s homes secure only in the discretion of police

officers. *** When the right of privacy must reasonably yield to the right of

search is, as a rule, to be decided by a judicial officer, not by a policeman or

government enforcement agent.” Id. at 13-14.

¶ 162 e. Postarrest Judicial Review Does Not

Sufficiently Protect Citizens’ Constitutional Rights

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¶ 163 The State contends citizens do not need the protection afforded by judicial

approval of an arrest warrant prior to the arrest as long as judges can review the

evidence after the arrest to determine whether police acted reasonably. In Katz, the

case Representative Dvorak cited as authority on search and seizure law, the United

States Supreme Court forcefully and persuasively rejected the argument now

advanced by the State:

“[The Government] argues that *** [it] should be exempted from the usual

requirement of advance authorization by a magistrate upon a showing of

probable cause. We cannot agree. Omission of such authorization

bypasses the safeguards provided by an objective predetermination of

probable cause, and substitutes instead the far less reliable procedure of an

after-the-event justification for the . . . [seizure], too likely to be subtly

influenced by the familiar shortcomings of hindsight judgment. [Citation.]

And bypassing a neutral predetermination of the scope of a [seizure] leaves

individuals secure from Fourth Amendment violations only in the discretion of

the police.” (Internal quotation marks omitted.) Katz, 389 U.S. at 358-59.

See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev.

881, 912-13 (1991) (noting the problem of ex post bias in suppression rulings).

¶ 164 Thus, the use of warrants issued by neutral magistrates for all arrests in

nonexigent circumstances provides important protections, against overreaching by

police officers, for the individual’s constitutional rights to security and privacy.

“[P]rosecutors and policemen simply cannot be asked to maintain the requisite

neutrality with regard to their own investigations ***.” Coolidge, 403 U.S. at 450.

The people of Illinois suffer a significant detriment from the lack of judicial

supervision prior to arrests in nonexigent circumstances. The State has shown no

significant advantage the people of Illinois gain from the use of investigative alerts

to counter that detriment. Balancing the government’s interest in the investigative

alert procedure against the people’s interest in security and their right to privacy, I

find no justification for the use of investigative alerts as a basis for arrest.

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¶ 165 f. Persuasive Authority Supports a Warrant Requirement for

Arrests in Nonexigent Circumstances

¶ 166 The United States Supreme Court, in many persuasive cases before Watson,

repeated the basic constitutional requirement that, except in exigent circumstances,

police must obtain a judicial warrant before making any arrest. See, e.g., McDonald

v. United States, 335 U.S. 451, 456 (1948); Coolidge, 403 U.S. at 450.

¶ 167 Some courts have rejected Watson and found that state constitutions required

warrants for arrests unless exigencies excused the lack of a warrant. The Supreme

Court of New Mexico, interpreting constitutional language similar to the language

of the Illinois Constitution, found that the Watson majority did not control the New

Mexico court’s interpretation of the New Mexico Constitution. The court held:

“[F]or a warrantless arrest to be reasonable the arresting officer must show that

the officer had probable cause to believe that the person arrested had committed

or was about to commit a felony and some exigency existed that precluded the

officer from securing a warrant.” Campos v. State, 1994-NMSC-012, ¶ 14, 117

N.M. 155, 870 P.2d 117.

See State v. Short, 851 N.W.2d 474, 502 (Iowa 2014) (“By involving a neutral

magistrate, the warrant requirement ensures that probable cause is evaluated not by

overzealous law enforcement officers.”); State v. Elison, 2000 MT 288, ¶ 46, 302

Mont. 228, 14 P.3d 456; People v. Avasino, 338 N.Y.S.2d 73, 79 (Crim. Ct. 1972);

Commonwealth v. McMahon, 2022 PA Super 133, ¶ 3; State v. Berrios, 235 S.W.3d

99, 104 (Tenn. 2007).

¶ 168 Applying the persuasive reasoning of the New Mexico Supreme Court’s

opinion in Campos, along with the decisions of the courts of Iowa, Montana, New

York, Pennsylvania, and Tennessee, and adopting the words of Delegate Dvorak,

this court should hold that the Illinois Constitution requires police to obtain a

warrant for any arrest unless police can show that exigent circumstances—

insufficient time to obtain a judicial warrant—excused the failure to obtain a

warrant.

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¶ 169 g. No Long-Standing State Tradition Permits Warrantless

Arrests in Nonexigent Circumstances

¶ 170 The majority cites five cases decided before 1970 for its assertion that “long-

standing state tradition is to allow warrantless arrests based on probable cause.”

(Emphasis in original.) Supra ¶ 56. The majority implies that the cases support

warrantless arrests even when no exigency excuses the failure to obtain a warrant.

One of the cited cases, People v. Henneman, 373 Ill. 603, 606 (1940), held that

police lacked probable cause to arrest the defendant and did not discuss exigency.

Three of the other cases fall under the general rule restated in People v. Mahaffey,

166 Ill. 2d 1, 25 (1995). In that case an informant gave police “detailed information

regarding the offenses and the offenders, and, prior to the defendant’s arrest, the

officers were able to verify a number of facts related to them by the informant. In

addition, there was the likelihood that the defendant would flee if he were not

apprehended quickly.” Id. The Mahaffey court held that exigent circumstances

excused the failure to obtain a warrant. Id. The majority’s cited cases, People v.

Jones, 16 Ill. 2d 569, 572-74 (1959), People v. Tillman, 1 Ill. 2d 525, 530-31 (1953),

and People v. Bambulas, 42 Ill. 2d 419, 421-22 (1969), all exemplify the general

rule: if a source gives police reason to further investigate and in the course of

investigation the police obtain probable cause to arrest the suspect, exigent

circumstances may excuse the failure to obtain a warrant.

¶ 171 The majority also cites three cases decided after Watson had completely altered

the landscape of fourth amendment analysis, People v. Grant, 2013 IL 112734,

¶ 11, People v. Jackson, 232 Ill. 2d 246, 274-75 (2009), and People v. Montgomery,

112 Ill. 2d 517, 525 (1986). Those cases do not show an Illinois tradition unaffected

by the Watson Court’s errors.

¶ 172 The statement of facts in the majority’s final case, People v. Swift, 319 Ill. 359,

363 (1925), does not expressly show exigency. Notably, the drafters of the Illinois

Constitution of 1970 did not refer to Swift (or any of the other cases the majority

cites) in the discussion of article I, section 6. The sponsor of the amendment

expressly relied on Katz, 389 U.S. at 357, the case in which the United States

Supreme Court persuasively held “the Constitution requires ‘that the deliberate,

impartial judgment of a judicial officer . . . be interposed between the citizen and

the police’ ” (quoting Wong Sun v. United States, 371 U.S. 471, 481-82 (1963)).

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The majority has not shown that a long-standing Illinois tradition justifies removal

of the requirement that, except in exigent circumstances, police must obtain a

warrant issued by an impartial judicial officer before making an arrest.

¶ 173 4. Section 107-2(1) Does Not Support

Warrantless Arrests

¶ 174 The majority also claims that section 107-2(1) of the Code of Criminal

Procedure of 1963 (725 ILCS 5/107-2(1) (West 2022)) supports application of the

Watson Court’s interpretation of the fourth amendment to the Illinois Constitution.

Supra ¶ 36. This court interpreted section 107-2 in 1980, when it provided, “A

peace officer may arrest a person when *** [h]e has reasonable grounds to believe

that the person is committing or has committed an offense” (Ill. Rev. Stat. 1977,

ch. 38, § 107-2(c)). See Abney, 81 Ill. 2d at 167-68. This court held that, to uphold

the constitutionality of the statute, “the principles of the exigent-circumstances rule

*** have been judicially engrafted upon the statute. The statute, as construed, is

thus in compliance with the constitutional guidelines.” Id. at 168.

¶ 175 Section 107-2 does not support applying the Watson Court’s interpretation of

the fourth amendment to the Illinois Constitution. Section 107-2, in accord with

article I, section 6, of the Illinois Constitution, requires police to obtain a warrant

for any arrest, except in exigent circumstances. Id.

¶ 176 The Illinois Constitution establishes the warrant requirement as a basic

protection against the abuse of police power. The warrantless arrest of Clark in

nonexigent circumstances violated his rights under article I, section 6, of the Illinois

Constitution. Because police made a warrantless arrest based on an investigative

alert, when no exigency excused the failure to obtain a judicial warrant, this court

should reverse the appellate court’s judgment and remand the case to the circuit

court for a trial without the evidence obtained as a result of the unconstitutional

warrantless arrest.

¶ 177 5. The Majority’s Decision Approves a

Racially Discriminatory Practice

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¶ 178 Under the majority’s ruling, police have unfettered discretion to decide whether

they have probable cause to arrest anyone. This court should recognize the practical

effect of such unfettered discretion. As one scholar wrote, “The dirty little secret of

policing is that the Supreme Court has actually granted the police license to

discriminate.” Michelle Alexander, The New Jim Crow: Mass Incarceration in the

Age of Colorblindness 130 (rev. ed. 2011). People of color, especially Blacks, feel

the pain of the boundless discretion granted to the police when deciding whom to

arrest on an investigative alert. Recently, in large part due to the availability of

video evidence, the wider public has become aware of, or at least no longer able to

ignore, the disparate treatment between Whites, Blacks, and Latinx individuals by

the CPD. In the wake of the Chicago police shooting of Laquan McDonald, both

the City of Chicago and the Department of Justice undertook investigations into

CPD policies and practices.

¶ 179 CPD’s own data spotlighted the disparate treatment. Of the 250,000 traffic stops

in the summer of 2014 not leading to an arrest, 72% of those stopped were Black,

compared to 17% Latinx and 9% White. Police Accountability Task Force,

Executive Summary, Recommendations for Reform: Restoring Trust Between the

Chicago Police and the Communities They Serve 10 (2016), https://www.chicago

patf.org/wp-content/uploads/2016/04/PATF_Final_Report_Executive_Summary_

4_13_16-1.pdf [https://perma.cc/42ER-JP3Q] (hereinafter Executive Summary). In

predominantly White neighborhoods, Blacks fared even worse. Police

Accountability Task Force, Report, Recommendations for Reform: Restoring Trust

Between the Chicago Police and the Communities They Serve 37 (2016),

https://chicagopatf.org/wp-content/uploads/2016/04/PATF_Final_Report_4_13_

16-1.pdf [https://perma.cc/YAX3-PCLL] (hereinafter Report). In District 18,

Blacks accounted for 57.7% of all stops even though Blacks made up only 9.1% of

the population. Id. In District 19, Blacks accounted for 51.1% of all stops even

though Blacks made up only 6.6% of the population. Id.

¶ 180 Black and Latinx drivers were searched approximately four times as often as

White drivers, yet contraband was found on White drivers twice as often as Black

and Latinx drivers. Executive Summary, supra, at 9. In a 2015 survey, nearly 70%

of young Black males reported being stopped by police in the prior 12 months. Id.

at 10. The disparate treatment in policing is seen in areas other than police stops.

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From 2008 to 2013, CPD set up 84% of driving under the influence checkpoints in

predominantly Black and Latinx police districts. Report, supra, at 40.

¶ 181 The Police Accountability Task Force, in its executive summary, found that

there was “substantial evidence that people of color—particularly African-

Americans—have had disproportionately negative experiences with the police over

an extended period of time.” Executive Summary, supra, at 14. “There is also

substantial evidence that these experiences continue today through significant

disparate impacts associated with the use of force, foot and traffic stops and bias in

the police oversight system itself.” Id.

¶ 182 A 2022 report by the City of Chicago Office of Inspector General, titled Report

on Race- and Ethnicity-Based Disparities in the Chicago Police Department’s Use

of Force, confirms that the racially disparate treatment continues:

“The quantitative evidence from investigatory stop and traffic stop data

shows an overwhelming disparity in the rates at which Black and non-Black

people were stopped by the police. The overrepresentation of Black people

among those stopped by the police was consistent across traffic stops and

investigatory stops, and it was persistent across every CPD District,

notwithstanding differences in District crime rates and the demographic

composition of District populations.” Office of Inspector Gen., City of Chi.,

Report on Race- and Ethnicity-Based Disparities in the Chicago Police

Department’s Use of Force 31 (2022), https://www.igchicago.org/wp-content/

uploads/2022/02/Use-of-Force-Disparities-Report.pdf [https://perma.cc/

7NLG-7PVK].

¶ 183 As discussed in the introduction to this dissent, my review of appellate court

cases dealing with investigative alerts is consistent with the disparate treatment

established by these statistics.

¶ 184 With these practical realities in mind, I am unwilling to legalize warrantless

arrests as reasonable under the Illinois Constitution. “Discrimination on the basis

of race, odious in all aspects, is especially pernicious in the administration of

justice.” Rose v. Mitchell, 443 U.S. 545, 555 (1979). And racial discrimination that

is “more covert and less overt” is no less offensive to the Illinois Constitution where

the results are the same for affected communities. See Flowers v. Mississippi, 588

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U.S. 284, 296 (2019). “[R]andom and degrading stops and searches of [Black]

youth tell kids that they are pariahs, that no matter how hard they study, they will

remain potential suspects.” (Internal quotation marks omitted.) Alexander, supra,

at 200. The racial impacts of policing and the criminal justice system, so devastating

to the Black and Latinx communities, have for too long been relegated to

irrelevancy in court decisions.

¶ 185 Take, for instance, Whren v. United States, 517 U.S. 806 (1996), where the

United States Supreme Court held that a traffic stop is reasonable under the fourth

amendment even if the subjective reason for the stop was the suspect’s race. As

long as officers spotted any minor traffic infraction, they could effectuate a stop

and search for more serious criminal activity. See id. at 814 (“the Fourth

Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in

certain circumstances, whatever the subjective intent” (emphasis in original)). The

Court concluded that, while “the Constitution prohibits selective enforcement of

the law based on considerations such as race,” “the constitutional basis for objecting

to intentionally discriminatory application of laws is the Equal Protection Clause,

not the Fourth Amendment.” Id. at 813. But the equal protection clause provides

little relief for communities affected by systemic racial disparities in policing. Even

where a system is clearly turning out racially disparate results, a defendant “must

prove that the decisionmakers in his case acted with discriminatory purpose.”

(Emphasis in original.) McCleskey v. Kemp, 481 U.S. 279, 292 (1987).

¶ 186 The result of these investigative alert cases is simple. Police are given expansive

discretion to stop, search, and arrest individuals of color. “Unbridled discretion

inevitably creates huge racial disparities.” Alexander, supra, at 103. By legalizing

police discretion, the courthouse doors are closed to “all claims by defendants and

private litigants that the criminal justice system operates in a racially discriminatory

fashion.” Id.

¶ 187 As Justice Sotomayor explained in her dissent in Utah v. Strieff, 579 U.S. 232,

252 (2016) (Sotomayor, J., dissenting), police have already been given an “array of

instruments to probe and examine” individuals. “When we condone officers’ use of

these devices without adequate cause, we give them reason to target pedestrians in

an arbitrary manner. We also risk treating members of our communities as second-

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class citizens.” Id.

¶ 188 6. Arrests Based on Investigative Alerts Violate the

Consent Decree

¶ 189 In 2017 the State of Illinois sued the City of Chicago in federal court, seeking

to enjoin the CPD “ ‘from engaging in a repeated pattern of using excessive force,

including deadly force, and other misconduct that disproportionately harms

Chicago’s African American and Latino residents.’ ” Illinois v. City of Chicago,

No. 17-cv-6260, 2019 WL 398703, at *1 (N.D. Ill. Jan. 1, 2019). The parties

resolved the case in 2018, with the approval of the federal court, by entering into a

consent decree, which provided:

“CPD will provide police services to all members of the public without bias and

*** without reference to stereotype based on race, color, ethnicity, *** or

criminal history.

***

*** CPD will *** ensure that its policies and practices prohibit

discrimination on the basis of *** race [or] color ***. ***

*** CPD will continue to require that all CPD members interact with all

members of the public in an unbiased, fair, and respectful manner. ***

*** CPD will prohibit officers from using race, ethnicity, [or] color ***

when making routine or spontaneous law enforcement decisions ***.” Consent

Decree, Illinois v. City of Chicago, No. 17-cv-6260, at 15-16 (N.D. Ill. Jan. 31,

2019), https://www.chicago.gov/content/dam/city/depts/cpb/supp_info/

ConsentDecreeComplete.pdf [https://perma.cc/78H6-YRQB].

¶ 190 The consent decree is both a contract between the parties and an order of the

court. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992); Williams

v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (A consent decree is both “a

voluntary settlement agreement which could be fully effective without judicial

intervention” and “a final judicial order [Citations.] Judicial approval of a

settlement agreement places the power and prestige of the court behind the

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compromise struck by the parties.”). Courts may exercise their contempt powers to

enforce consent decrees. Spallone v. United States, 493 U.S. 265, 276 (1990)

(“ ‘courts have inherent power to enforce compliance with their lawful orders

through civil contempt’ ” (quoting Shillitani v. United States, 384 U.S. 364, 370

(1966))).

¶ 191 A pattern or practice of continuing racial discrimination in law enforcement

violates the consent

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