# People v. Clark

> Illinois Supreme Court · December 19, 2024 · 2024 IL 127838

URL: https://www.frixlaw.com/law-library/cases/10763704

## Case

- **Court:** Illinois Supreme Court
- **Decided:** December 19, 2024
- **Citations:** 2024 IL 127838
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10763704

## How later opinions describe it (automated extraction)

- finding that the court considered the factors in section 5-4.5-105(a) where it stated it considered the evidence at trial, the presentence investigative report, and the evidence at sentencing, which included evidence relating to the factors
- holding version of section 5-4.5-105(a) in effect at sentencing applied, even though offense occurred before effective date
- noting a court of review “must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently”
- holding, record as whole showed court considered pertinent mitigation

## Opinion text

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.

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“ ‘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

- 16 -
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

- 17 -
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).

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¶ 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

- 23 -
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

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(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10763704. Public record. Not legal advice.