People v. Thornton

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Appellate Court Date: 2021.07.15

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People v. Thornton, 2020 IL App (1st) 170753

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption CHARLES E. THORNTON, Defendant-Appellant.

District & No. First District, Second Division

No. 1-17-0753

Filed March 31, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-14345; the

Review Hon. Evelyn B. Clay, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Maggie A. Heim, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg

and Daniel Piwowarczyk, Assistant State’s Attorneys, of counsel), for

the People.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.

Justice Coghlan concurred in the judgment and opinion.

Justice Pucinski specially concurred, with opinion.

OPINION

¶1 Following a jury trial, defendant Charles Thornton was found guilty of home invasion and

the aggravated criminal sexual assault of victims D.P. and S.F. He was sentenced to a total

term of 72 years’ imprisonment for the offenses. On appeal, defendant contends that the trial

court erred in denying his motion to suppress evidence, including incriminating statements,

collected while he was in police custody. As justification for his claim, defendant maintains

police arrested him based on an anonymous, uncorroborated tip absent reasonable suspicion or

probable cause. Defendant also maintains police arrested him based on an unconstitutional

investigative alert, rather than a warrant. He argues alternatively that the investigative alert was

not supported by probable cause, which he claims also justifies suppression of the evidence.

We affirm.

¶2 BACKGROUND

¶3 Defendant’s Arrest and Motion-to-Suppress Hearing

¶4 Defendant was arrested and charged with invading the home of 57-year-old D.P. and then

brutally beating and raping both her and her 63-year-old friend S.F. on the Sunday morning of

July 11, 2010, just before the ladies’ planned church outing.

¶5 That same day, 1 the rape victims provided Detective Kenneth Wiggins with a physical

description of defendant as a black male, between 5’7” and 5’8”, and around 150 to 160

pounds. According to them, he also had a chipped front tooth and tattoos on both his upper

arms. Based on this description, Detective Wiggins created a five-person photo array

containing similarly described individuals, although the array unwittingly did not contain

defendant’s image. Detective Wiggins presented the photo array to the victims on July 13,

2010. D.P. was unable to identify her attacker from that array, while S.F. identified an

individual who was clearly not defendant since his photo was not part of the array.

¶6 As discussed in more depth later, during the course of the rapes, defendant informed the

victims that he had been shot in the mouth or face, resulting in his chipped tooth. S.F. relayed

this detail to the police and her son, M.F. M.F. then conducted his own investigation in the

neighborhood in search of someone who had been shot in the mouth. M.F.’s search uncovered

defendant’s name, which M.F. promptly relayed to Detective Wiggins on the evening of July

13. Detective Wiggins pulled defendant’s physical characteristics, which matched the

descriptions provided by the victims.

¶7 As a result, on July 14, Detective Wiggins put together another five-person photo array,

this time including defendant’s image. From that array, S.F. tentatively identified defendant,

meaning that, while she was not completely sure he was her attacker, the photo certainly looked

like him. D.P. again did not identify anyone. Defendant, it was discovered, had a previously

listed address of 6100 S. Sangamon Street, only a block or so from D.P.’s house, where the

rapes were committed. In addition, it was learned that defendant had indeed been shot in the

mouth, having been the victim of an aggravated battery with a firearm, and had tattoos on both

1

Detective Wiggins testified at the motion-to-suppress hearing that he interviewed the sexual

assault victims on July 11, 2010. However, at trial, he testified that he was assigned the case on July

13, 2010.

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his upper arms. Consequently, that same day Detective Wiggins issued an investigative alert

for defendant that included his photo. Detective Wiggins testified that “there was no need for

a warrant” given that he had issued the investigative alert first.

¶8 Several days later, in the early morning hours of July 19, Chicago police officer Len Jarvis

received an anonymous 911 call, 2 transmitted over the police radio, as he was working patrol.

The call reported a person wanted for two criminal sexual assaults was sitting on the porch of

1000 W. 61st Street and wearing a green and white shirt and also green shorts. Officer Jarvis

arrived at the address and saw that defendant (who bore that description “to the T”) was the

only one walking on the street. Defendant ultimately turned into a yard at 945 W. 61st Street,

and Officer Jarvis later identified defendant in court as the person he observed walking down

the street that evening. Although Officer Jarvis did not specifically testify to the exact length

of time between the 911 call and his observation of defendant, his testimony indicates it was a

very short period, as he stated the call “came out *** that somebody was wanted matching [the

defendant’s] description in that vicinity. We were touring that area and [the defendant was]

right there.”

¶9 Officer Jarvis and his partner then approached defendant and inquired as to his name, which

defendant provided. Officer Jarvis handcuffed defendant for safety reasons, then stated

defendant was not under arrest but they wished to run his name in the police system. Officer

Jarvis stated that, assuming there were no problems, defendant would be “on [his] way.”

Defendant sat in the back of the open-door police wagon for several minutes along with the

other police officer while Officer Jarvis ran defendant’s name through the I-CLEAR

investigative alert system. On doing so, the investigative alert, together with the attached photo,

emerged that defendant was wanted for two criminal sexual assaults. The alert also contained

defendant’s height, weight, and fact that he had tattoos, among other details. Finding probable

cause based on the investigative alert, Officer Jarvis placed defendant under arrest and

Mirandized him. See Miranda v. Arizona, 384 U.S. 436 (1966). Officer Jarvis indicated that

the entire interaction with defendant lasted only several minutes.

¶ 10 Relevant to this appeal, defendant, while acting pro se, filed a motion to quash his arrest

and suppress evidence. Testimony reflected the above-stated facts, 3 with defendant calling as

his witness Officer Jarvis and the State calling Detective Wiggins to testify. Defendant argued

there was no probable cause for his arrest. He noted that Detective Wiggins issued an

investigative alert instead of obtaining a warrant, yet this bypassed the constitutional

requirement that a warrant be issued based on probable cause and supported by an affidavit.

Defendant was subsequently represented by counsel, 4 who added that defendant was illegally

2

Officer Jarvis specifically testified that he received the call through the “OEMC,” which is the

Office of Emergency Management and Communications and provides Chicagoans with a 911 service

for police, fire, and emergency medical services.

3

Some of the facts are also derived from Officer Jarvis’s testimony at a separate hearing on

defendant’s motion-to-suppress statements, wherein defendant was represented by counsel. Both

parties cite this testimony, which is appropriate since a reviewing court may consider all trial evidence

in determining whether the trial court’s decision denying a motion to suppress was correct. People v.

Murdock, 2012 IL 112362, ¶ 35.

4

After defendant represented himself pro se at the hearing on his motion to suppress evidence and

after the court denied the motion, a public defender was assigned to defendant’s case. The public

defender then filed a motion to reconsider on defendant’s behalf, and the parties presented extensive

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arrested at the outset by Officer Jarvis based on a phone call from an anonymous, unreliable

informant, who provided insufficient information for the arrest. Counsel further argued that

the investigative alert did not give rise to probable cause to arrest.

¶ 11 The State responded that probable cause existed and was sufficient to support defendant’s

arrest in this case. The State argued that Officer Jarvis was justified in asking for defendant’s

name and also had probable cause at the time he arrested defendant based on the investigative

alert. The State noted that Detective Wiggins testified as to his personal knowledge of probable

cause underlying the investigative alert. The facts showed that Detective Wiggins was given

defendant’s name as a possible suspect and, upon investigation, learned that defendant bore

the same tattoos and facial injuries as described by the victims. In addition, one of the victims

tentatively identified him as the suspect from the photo array, and he lived near one of them.

All this justified a warrantless arrest since there was probable cause for the arrest. The trial

court agreed with the State and denied defendant’s motion.

¶ 12 Defendant’s Trial and Sentencing

¶ 13 The cause then proceeded to trial, where evidence established that on the Sunday morning

of July 11, 2010, D.P. was waiting for her friend S.F. to pick her up for church from D.P.’s

home at 6040 S. Sangamon Street in Chicago. D.P. suffered from seizures and could no longer

drive.

¶ 14 The doorbell rang. Thinking it was a neighbor, D.P. opened the door only to find a black

man she did not recognize before her, who immediately pushed his way into her home while

hitting her. The man, later identified as defendant, pushed her on the floor and took off her

clothes. D.P. fought him but to no avail. He pulled her into the bedroom while continuing to

take off her clothing and hit her, then attempted to have sex with her.

¶ 15 Meanwhile S.F. had arrived at the home around 7:30 a.m. On approaching the door, she

saw one of D.P.’s shoes and her glasses in the vestibule. Believing that D.P. might be having

a seizure, S.F. entered the apartment to the dining room, whereupon a naked man “jumped

out,” then beat her over the head, kicked her, knocked her down, and pulled on her clothes.

Defendant stated, “bitch, you shouldn’t had come in here, but I’m glad you did.” Defendant

then beat S.F. in the head and face with a silver metal ashtray and pulled her down to the floor

as she struggled against him. Defendant pulled off S.F.’s pantyhose, twisted her arm back, and

dragged her into the bedroom. D.P. was crouched naked in the corner, beaten down, and

appeared unable to get up, according to S.F. Defendant took off S.F.’s clothing and placed both

women on the bed. He vaginally raped D.P. from behind, stating, “[Y]ou’re going to like this.

Old ladies need this. Nobody fucks old ladies.” He raped S.F. while facing her. D.P. then

started having a seizure. Defendant moved back to D.P., vaginally raped her again, and ordered

her to perform fellatio. Defendant returned to S.F. and anally raped her. The alternating rapes

continued.

¶ 16 D.P. had yet another seizure, prompting S.F. to plead with defendant to obtain water and

medication, which he allowed. Defendant followed S.F. into the kitchen, S.F. obtained water

oral argument before the trial court. For the ease of readers, we have simply collapsed the arguments

together above. The court denied defendant’s motion to reconsider and his motion for a new evidentiary

hearing, both of which were filed with the aid of counsel. For defendant’s jury trial, the court ultimately

appointed him a private attorney.

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and brought it back to D.P., and D.P. took her pills. D.P. tried to run out of the apartment for

help, but defendant beat her and brought her back into the bedroom.

¶ 17 S.F., in an attempt to abate the beatings, began asking defendant questions and urging him

to stop. S.F. looked at him more closely and noticed his teeth were chipped, then inquired how

that happened. Defendant informed her that he had been shot in the mouth and that the bullet

struck his neck. S.F. tried to coax defendant to leave. Defendant eventually told S.F. that she

looked like a “Christian lady” and asked her to pray for him. Everyone got clothed, and they

prayed together. S.F. then suggested that defendant leave while assuring him they would not

call the police. Defendant eventually left.

¶ 18 The police were subsequently called. S.F. and D.P. were transported to the hospital, where

sexual assault kits were collected. Defendant’s DNA was a match to that recovered from D.P.

and S.F. as part of the sexual assault kit, and his fingerprints were found on the metal ashtray

police recovered from D.P.’s home.

¶ 19 As intimated above, defendant was placed in police custody and then in a lineup on July

19, where both S.F. and D.P. identified him as their attacker. He was subsequently interviewed

by the assistant state’s attorney and ultimately admitted via a written statement to beating and

sexually assaulting both women, which was consistent with their in-court testimony. S.F. and

D.P. also identified defendant in court as their attacker.

¶ 20 The jury found defendant guilty as charged, and he was sentenced to 10 years for home

invasion (count I), two 16-year terms for the aggravated criminal sexual assault of S.F. (counts

VI and VII), and three 10-year terms for the aggravated criminal sexual assault of D.P. (counts

IX, X, and XII), all to be served consecutively for a total prison term of 72 years.

¶ 21 ANALYSIS

¶ 22 Defendant now appeals, arguing against the denial of his motion to suppress. When

reviewing the trial court’s ruling on a motion to suppress evidence, we ordinarily apply a two-

part standard of review. People v. Eubanks, 2019 IL 123525, ¶ 33. We will reverse the trial

court’s factual findings only if they are against the manifest weight of the evidence, but we

review de novo the trial court’s ultimate ruling on whether the evidence should be suppressed.

Id. A finding is against the manifest weight of the evidence where the opposite conclusion is

apparent or the findings are unreasonable, arbitrary, or not based on the evidence. People v.

Lomax, 2012 IL App (1st) 103016, ¶ 19. A reviewing court may consider all trial evidence in

determining whether the trial court’s decision denying a motion to suppress was correct.

Murdock, 2012 IL 112362, ¶ 35.

¶ 23 To prevail on a motion to suppress evidence at the trial level, the defendant bears the burden

of producing evidence and establishing a prima facie case that the search and seizure was

unreasonable. People v. Martin, 2017 IL App (1st) 143255, ¶ 18; People v. Carodine, 374 Ill.

App. 3d 16, 21 (2007). A prima facie showing means that the defendant has the primary

responsibility for establishing the factual and legal bases for the motion to suppress. People v.

Thomas, 2019 IL App (1st) 170474, ¶ 15. However, once a defendant makes a prima facie

showing of an illegal search and seizure, the burden then shifts to the State to produce evidence

justifying the intrusion. Id. However, the ultimate burden remains with the defendant. Id.

¶ 24 Defendant argues he fulfilled that burden where, from the outset in this case, he was

unlawfully detained and arrested when he was handcuffed without reasonable suspicion or

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probable cause. Defendant also contends the investigative alert did not justify his arrest. He

maintains that his incriminating statement, DNA swab, and lineup identification, which were

all a result of being in custody and admitted at trial, were obtained by exploitation of the illegal

arrest. Therefore, he argues the trial court erred in denying his motion to suppress since police

were unreasonable in their actions.

¶ 25 Both the United States Constitution and the Illinois Constitution protect every person from

unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.

Reasonableness under the fourth amendment generally requires a warrant supported by

probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010); People v. Stehman, 203 Ill. 2d

26, 34 (2002). Probable cause exists where the facts and circumstances, considered as a whole,

are sufficient to justify a belief by a reasonably cautious person that the defendant is or has

been involved in a crime. People v. Hopkins, 235 Ill. 2d 453, 472 (2009).

¶ 26 Nonetheless, a police officer may detain a person without having a warrant with probable

cause to arrest. People v. Maxey, 2011 IL App (1st) 100011, ¶ 46. Specifically, a limited

exception to the warrant requirement under Terry v. Ohio, 392 U.S. 1, 21-22 (1968), permits a

police officer to briefly stop (and therefore necessarily seize) a person for temporary

questioning if he reasonably believes the person has committed, or is about to commit, a crime.

Johnson, 237 Ill. 2d at 89. A “seizure” thus occurs when an officer has in some way restrained

a citizen’s liberty so the person believes he is not free to leave. Thomas, 2019 IL App (1st)

170474, ¶ 16. Notably, reasonable suspicion is a less exacting standard than probable cause,

and the evidence necessary to justify a Terry stop can even arise when no violation of the law

is witnessed, so long as it does not constitute a mere hunch. Maxey, 2011 IL App (1st) 100011,

¶ 46; People v. Walter, 374 Ill. App. 3d 763, 774 (2007). A police officer must point to specific,

articulable facts that, taken together with rational inferences, reasonably warrant the intrusion.

Walter, 374 Ill. App. 3d at 774.

¶ 27 Police Made a Lawful Terry Stop

¶ 28 Defendant specifically contends that police perpetrated an unlawful Terry stop based on an

anonymous, uncorroborated tip and an illegal arrest by handcuffing him and placing him in the

police wagon. The State counters that the police in this case executed a narrowly tailored lawful

Terry stop, pursuant to the police dispatch aiming to identify a reported violent criminal, and

as such, defendant was neither unlawfully seized nor detained.

¶ 29 In evaluating whether reasonable suspicion exists for the purposes of a Terry stop, a court

should objectively consider whether the information known to the officer at the time of the

stop would warrant a person of reasonable caution to believe a stop was necessary to

investigate the possibility of criminal activity. People v. Shafer, 372 Ill. App. 3d 1044, 1048-

49 (2007). A court should also consider the quality and content of the information in the

officers’ knowledge and how reliable the source is. People v. Lampitok, 207 Ill. 2d 231, 257

(2003). Factors to consider include whether the officers’ observations corroborate the tip,

whether the informant explains the basis for his knowledge of the tip, and whether the officers

act immediately on the tip upon receiving it. Id. Police officers are also entitled to act upon

information received in official communications, including radio transmissions, to initiate a

Terry stop. Maxey, 2011 IL App (1st) 100011, ¶ 54. The officers’ actions must be justified at

the inception and reasonably related in scope to the circumstances that called for the

interference in the first place. People v. Morrison, 375 Ill. App. 3d 545, 549 (2007).

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¶ 30 Here, while it is undisputed that police acted without a warrant, the State fulfilled its burden

of establishing that the police made a proper initial investigative Terry stop. Officer Jarvis

testified that he received a 911 call over the police radio that a person wanted for two criminal

sexual assaults, crimes which possibly involved threat of force or force (see 720 ILCS 5/11-

1.20 (West 2010)), was sitting on a porch at 1000 W. 61st Street and wearing a green and white

shirt and also green shorts. Officer Jarvis, who was on patrol in the area, proceeded to the

identified location, where he observed defendant matching the description and walking alone

a block and a half away at 945 W. 61st Street. Officer Jarvis’s observation of defendant

corroborated the initial call, giving rise to the inference that the 911 caller was credible. See

People v. Ledesma, 206 Ill. 2d 571, 584 (2003), overruled in part by People v. Pitman, 211 Ill.

2d 502, 512-13 (2004); 5 People v. Eyler, 2019 IL App (4th) 170064, ¶ 30. The officers then

questioned defendant as to his name and briefly detained him with handcuffs for officer safety

while checking his identity in the police system and stating he was free to leave if cleared.

Morrison, 375 Ill. App. 3d at 549 (noting an officer may ask a person to identify himself in the

course of a Terry stop).

¶ 31 The officers thus had reasonable suspicion to briefly detain defendant where there was an

initial tip from a 911 call, there was temporal proximity between the time of the tip and

defendant’s location, and defendant matched the caller’s description and general location. See

Eyler, 2019 IL App (4th) 170064, ¶ 35; Maxey, 2011 IL App (1st) 100011, ¶¶ 50-51; see also

Hayes v. Florida, 470 U.S. 811, 816 (1985) (noting, if articulable facts support a reasonable

suspicion that a person has committed a criminal offense, police may stop the person to identify

him, question him briefly, or detain him briefly while attempting to obtain additional

information).

¶ 32 In reaching this conclusion, we have considered Florida v. J.L., 529 U.S. 266 (2000), on

which defendant relies. In J.L., police received an anonymous tip via telephone that a young

black male wearing a plaid shirt was standing at a bus stop carrying a gun. The court noted

there was no audio recording of the tip and nothing was known about the informant. In addition,

the record did not say how long after receiving the tip that officers responded, but based on the

tip, officers went to the identified bus stop. There, they encountered the defendant matching

the informant’s description, and although the defendant did not make threatening movements

and there was no visible gun, officers had him place his hands up on the bus stop, frisked him,

and seized a gun from the defendant’s pocket. Id. at 268. The Supreme Court held that the

anonymous tip at issue, without more, was insufficient to justify the Terry stop. Id. at 274; see

also People v. Henderson, 2013 IL 114040, ¶ 30 (relying on J.L. in finding that a bare-bones

tip from an anonymous citizen reporting a “possible gun” in a moving vehicle without any

predictive information was insufficiently reliable). The Court wrote that the reasonable

suspicion at issue in J.L. required the tip to “be reliable in its assertion of illegality, not just in

its tendency to identify a determinate person,” while also noting that the likelihood of criminal

activity was central in anonymous-tip cases. J.L., 529 U.S. at 272.

¶ 33 Significantly, here, unlike in J.L., the report was from a 911 caller. It is well established

that “an emergency call to police should not be viewed as an ‘anonymous’ tip or with the

skepticism applied to tips provided by confidential informants.” Shafer, 372 Ill. App. 3d at

5

The decision in Ledesma was overruled to the extent that it was inconsistent with the standard of

review articulated in Ornelas v. United States, 517 U.S. 690 (1996).

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1054; see also Navarette v. California, 572 U.S. 393, 400 (2014) (noting a 911 call has features

that allow for identifying and tracing callers and thus provides for safeguards against “making

false reports with immunity”); 720 ILCS 5/26-1(12) (West 2010) (a person may be convicted

of disorderly conduct for reporting a false complaint via 911). While 911 tips are not per se

reliable, they are a relevant circumstance in determining the caller’s veracity. Navarette, 572

U.S. at 401. The fact that the caller in this case reported a suspected perpetrator of sexual

assault implies that the caller was either a victim of the crime, an eyewitness, or knew the

victim. See id. at 399. Also, unlike in J.L., the record here shows that officers responded

immediately to the call and did no more than what was necessary to investigate the suspect’s

identity for the alleged crime. Officer Jarvis stated, assuming there were no problems,

defendant would be “on [his] way” after the momentary name-check. See People v. Ross, 317

Ill. App. 3d 26, 31 (2000) (the scope of the investigation must be reasonably related to the

circumstances that justified the police interference and the investigation must last no longer

than necessary to effectuate the purpose of the stop); see also People v. Colyar, 2013 IL

111835, ¶ 46.

¶ 34 This was not a report of a crime in progress, where officers could observe the suspect to

gain more reasonable suspicion to support the stop, but rather a report locating a suspect for

two felonies that had already occurred. Officers thus had a strong interest in solving the

reported crimes and bringing the offender to justice, which outweighed the narrowly tailored

intrusion. See United States v. Hensley, 469 U.S. 221, 229 (1985). Indeed, “[t]he Fourth

Amendment does not require a policeman who lacks the precise level of information necessary

for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a

criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972). As such, the officers here

should have been permitted to investigate the circumstances that aroused their suspicions for

this completed crime notwithstanding that the record does not disclose a detailed basis for the

911 caller’s knowledge as to the sexual assaults. See Hensley, 469 U.S. at 229 (noting, if police

have reasonable suspicion that a person they encounter is wanted in connection with a

completed felony, a Terry stop may be made to investigate that suspicion); Eyler, 2019 IL App

(4th) 170064, ¶ 35 (noting a Terry stop may be justified by completed criminal activity);

People v. Fields, 2014 IL App (1st) 130209, ¶ 25; cf. People v. Lopez, 2018 IL App (1st)

153331, ¶¶ 21-28 (finding a tip reporting drunk driving unreliable, where there was no

evidence the tipster contacted police through an emergency number, and most importantly it

was insufficient, where the allegations of wrongdoing lacked a basis for the tipster’s

knowledge); Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 222 (2004) (noting a citizen-

informant did not provide specific details underlying the report of “driving recklessly” to

justify the officer’s Terry stop of the vehicle).

¶ 35 Defendant nonetheless insists that 911 callers cannot be deemed reliable because they may

choose to remain anonymous. In support, in his reply brief, defendant cites a PDF document

issued by the city police superintendent, which states that any person reporting a crime who is

not the victim may inform the 911 dispatcher that he or she wishes to remain anonymous.

Defendant also referred to this document at oral arguments. We find defendant confuses

anonymity with traceability, but the two appear mutually exclusive. Notwithstanding that,

defendant cannot rely on evidence that he never presented to the trial court. People v. Kirklin,

2015 IL App (1st) 131420, ¶ 130 (“[M]atters not supported by the trial record are not

appropriately raised on direct appeal.”). It is also worth noting that, in his opening brief,

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defendant simply characterized the 911 call in this case as an “anonymous call” and thus did

not adequately address the body of case law cited above that distinguishes emergency callers

from confidential informants. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (noting points

not argued are forfeited and shall not be raised in the reply brief or in oral argument). At the

motion-to-suppress hearing, once the State identified the 911 call, which was a traceable

source, the State’s burden of production was satisfied. See In re A.V., 336 Ill. App. 3d 140, 144

(2002) (upholding the denial of the defendant’s motion to suppress when informants were

physically present in the park where they reported criminal activity, making them traceable,

and their information was corroborated). Nothing precluded defendant from subpoenaing

additional information on the caller, but defendant chose not to do so. Defendant thus failed to

sustain his ultimate burden of persuasion in establishing that the police conduct was

unreasonable in this case. See People v. Brooks, 2017 IL 121413, ¶ 22.

¶ 36 Given our conclusion, we further reject defendant’s contention that the officers effected an

arrest requiring probable cause specifically when they handcuffed defendant, placing him in

the back of the police vehicle. The mere restraint of an individual or act of handcuffing does

not transform an investigatory Terry stop into an illegal arrest. Colyar, 2013 IL 111835, ¶ 46;

People v. Young, 306 Ill. App. 3d 350, 354 (1999). As a result, even though a defendant is not

free to go during the investigatory stop, the stop is not an arrest. Maxey, 2011 IL App (1st)

100011, ¶ 60; People v. Paskins, 154 Ill. App. 3d 417, 422 (1987). Rather, whether to handcuff

a suspect is a fact-driven determination dependent on protecting law enforcement officers, the

public, or a suspect from a risk of undue harm. See Colyar, 2013 IL 111835, ¶¶ 45, 47; Fields,

2014 IL App (1st) 130209, ¶ 27; see also People v. Ware, 264 Ill. App. 3d 650, 655 (1994)

(noting the issue is whether a reasonably prudent person in the circumstances would be

justified in believing his safety or that of others was in danger). The difference between an

investigatory stop and arrest does not necessarily lie in the initial restraint of movement but,

rather, in the length of time the suspect is detained and the nature and scope that follows the

initial stop. People v. Walters, 256 Ill. App. 3d 231, 237 (1994).

¶ 37 Again, Officer Jarvis specifically testified that he handcuffed defendant for “safety

reasons,” which seems reasonable given that defendant was alleged to have committed two

felonies possibly using force or threat of force. Cf. People v. Arnold, 394 Ill. App. 3d 63, 71-

73 (2009) (handcuffing the suspect was unreasonable given that he was wanted for a municipal

ordinance violation, not a crime of violence, and the suspect did not pose a flight risk).

Defendant did not challenge or rebut that evidence at the motion-to-suppress hearing.

¶ 38 We thus reject defendant’s reliance on People v. Wells, 403 Ill. App. 3d 849 (2010),

wherein this court held that handcuffing the defendant transformed what was initially a legally

justified Terry stop into an arrest but without the necessary probable cause. There, the

defendant’s girlfriend called police, reporting that the defendant was outside her building,

ringing her unit, and threatening to kill her over the telephone, although there was no indication

he was armed. Defendant left but then about 10 minutes later returned ringing the bell again

and “ ‘threatening to call’ ” his girlfriend. Id. at 850. The trial court granted the defendant’s

motion to suppress, where police, on finding the defendant walking down the block, placed

him in handcuffs right away and patted him down for weapons without asking any questions.

Id. at 850-52. This court affirmed, agreeing with the trial court that there was no basis to suspect

the presence of weapons or a risk of attack. Id. at 860-61.

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¶ 39 We find defendant’s reliance on Wells misplaced since the crime reported to police in this

case did not simply reflect verbal threats; rather, defendant was reported to have actually

committed two criminal sexual assaults, possibly involving threat of force or force (see 720

ILCS 5/11-1.20 (West 2010)). See Walters, 256 Ill. App. 3d at 238 (police investigating armed

robbery could reasonably conclude suspects in stopped vehicle were armed and dangerous).

Although we cannot view a Terry stop with analytical hindsight, we feel compelled to observe

that defendant did in fact violently rape and beat both women, thereby committing aggravated

criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2010)). See Ware, 264 Ill. App. 3d at

654 (facts supporting a Terry stop must be considered from the perspective of a reasonable

officer at the time the situation confronted him). Moreover, here, unlike in Wells, police limited

the scope of intrusion and did not search defendant. Thus, based on the foregoing, we reject

defendant’s contention that he was illegally arrested upon being handcuffed by police.

¶ 40 Police Had Probable Cause to Arrest Defendant

Based on the Investigative Alert

¶ 41 We therefore conclude officers had reasonable suspicion under Terry to stop defendant for

investigatory purposes, which moments thereafter ripened into probable cause to arrest. Here,

Officer Jarvis ran defendant’s name through the I-CLEAR system after handcuffing him. On

doing so, the investigative alert, together with the attached photo, revealed that defendant was

wanted for two criminal sexual assaults. Then finding probable cause, Officer Jarvis testified

that he placed defendant under arrest and Mirandized him.

¶ 42 Defendant argues that the facts in the investigative alert did not amount to probable cause

to believe he committed the sexual assaults, but we strongly disagree. The standard for

determining whether probable cause exists is probability of criminal activity, rather than proof

beyond a reasonable doubt. People v. Wear, 229 Ill. 2d 545, 564 (2008). Indeed, probable cause

does not even demand a showing that the belief that the suspect has committed a crime be more

likely true than false. Id. In that sense, it is not a legal or technical determination but one of

practicality and common sense, which analyzes the totality of the circumstances at the time of

arrest. People v. McGee, 2015 IL App (1st) 130367, ¶ 47.

¶ 43 Here, the following facts formed the basis for the investigative alert. S.F. relayed to her

son M.F. that defendant had been shot in the face or the mouth, and M.F.’s subsequent

investigation of the neighborhood for such a person uncovered defendant’s name. M.F. relayed

this information to Detective Wiggins, who included defendant’s image in a second photo

array, where S.F. tentatively identified defendant as the rapist. Police then learned that

defendant lived a block or so from the victim D.P.’s house, where the rapes occurred. Further,

defendant indeed had been shot in the mouth and had tattoos on both his upper arms as

described by the victims. Detective Wiggins testified to these facts at defendant’s motion-to-

suppress hearing. This established that, at the time of defendant’s arrest, sufficient facts existed

“to lead a reasonably cautious person to believe” he had committed a crime. See Wear, 229 Ill.

2d at 563-64.

¶ 44 Here, contrary to defendant’s contention otherwise, Detective Wiggins’s testimony

established probable cause that supported the investigative alert, which justified Officer

Jarvis’s reliance on the alert in arresting defendant. See McGee, 2015 IL App (1st) 130367,

¶ 50 (upholding the denial of the motion to suppress where the underlying facts of the

investigative alert, including photo array identifications of the defendant, provided probable

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cause to arrest the defendant); Maxey, 2011 IL App (1st) 100011, ¶ 54 (arresting officers may

rely upon police radio transmissions to make a Terry stop or an arrest even if they are unaware

of the specific facts that established reasonable suspicion to initiate a Terry stop or probable

cause to make that arrest). Where probable cause exists, police may effectuate a warrantless

arrest on a person in public without violating the fourth amendment. People v. Davis, 398 Ill.

App. 3d 940, 951 (2010); see also McGee, 2015 IL App (1st) 130367, ¶ 47 (warrantless arrest

is valid if the police have probable cause). That is just what occurred here.

¶ 45 Defendant nonetheless maintains investigative alerts are an unconstitutional end-run

around the warrant requirement. Defendant relies on People v. Bass, 2019 IL App (1st) 160640,

¶ 71, wherein a divided panel of this court recently held that investigative alerts, even those

supported by probable cause, violated the Illinois Constitution. The Bass court reasoned that

the Illinois Constitution and its historic interpretation required a warrant, supported by an

affidavit (as opposed to the United States Constitution’s oath or affirmation requirement) and

issued by a neutral magistrate, before an officer could effect an arrest. In other words, the Bass

court conceded that the fourth amendment to the United States Constitution permits a

warrantless arrest outside the home as long as police have probable cause but determined that

the Illinois Constitution went “a step beyond” the federal constitution in providing greater

protections against the abuse of authority by police officers. Id. ¶¶ 37, 62, 71.

¶ 46 In People v. Braswell, 2019 IL App (1st) 172810, ¶ 37, the defendant, in reliance on Bass,

also argued that investigative alerts were unconstitutional. The Braswell court found Bass

incorrectly decided and adopted the view outlined by Justice Mason in her partial dissent in

Bass. Id. We do the same here for several reasons.

¶ 47 First, as noted in Braswell, the majority in Bass based its decision on the notion that the

Chicago police use investigative alerts as an improper means of circumventing the warrant

requirement. But, Bass, like the present case, had an underdeveloped factual record regarding

the investigative alert system to support its conclusion. Justice Mason noted this rather

explicitly in her dissent. See Bass, 2019 IL App (1st) 160640, ¶¶ 119-20 (Mason, J., concurring

in part and dissenting in part). As far as this case goes, while defendant actually argued at the

trial level that the investigative alert was unconstitutional (unlike the defendant in Bass), he

left the evidentiary record wanting. For example, we do not know specifically why Detective

Wiggins chose to issue an investigative alert instead of obtaining a warrant. At the pretrial

hearing, Detective Wiggins merely testified that police “start off issuing investigative alerts

first,” making it unnecessary “at that point” to obtain a warrant. At trial, he further explained

that it is “an alert that we put out on a subject, if he is ever picked up or stopped by the police,

if they run his name, the police will know that he is wanted by a detective to speak to him.”

This explanation falls far short of understanding the system and the use of an investigative alert

here. Was an alert issued first because defendant was a suspected rapist at large, and it is a

more expeditious process for catching a suspect? How routine is such a process? Was an alert

issued because defendant, who was periodically homeless, was unlocatable, making obtaining

a warrant less pressing or less reasonable? These unanswered questions are important in

understanding the matter.

¶ 48 Second, following Justice Mason’s dissent, there is no reason to believe that this case (or

that in Bass) presents one of the narrow exceptions to the limited-lockstep doctrine. As Justice

Mason stated, our supreme court has consistently interpreted the Illinois Constitution’s search

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and seizure clause in conformity with the United States Supreme Court’s interpretation of the

fourth amendment. See id. ¶ 116 (and cases cited therein).

¶ 49 Third, we are persuaded by Justice Mason’s sound reasoning:

“Although the majority is willing to assume that investigative alerts are routinely used

by police to circumvent the process of obtaining a warrant, there is no apparent reason

why, when police have probable cause to arrest an individual (as they did here), the use

of an investigative alert gives them any untoward advantage. See 725 ILCS 5/107-

2(1)(c) (West 2014) (permitting warrantless arrest when police officer ‘has reasonable

grounds to believe the person *** has committed an offense’); People v. Buss, 187 Ill.

2d 144, 204 (1999) (permitting officers to rely on the collective knowledge of other

officers for purposes of establishing probable cause). The majority certainly does not

articulate any. And I can perceive no principled basis on which to hold that police may

arrest an individual without a warrant and without an investigative alert as long as they

have probable cause, but if they issue an investigative alert based on the same facts

giving rise to probable cause, they have run afoul of the Illinois Constitution.” Id. ¶ 120.

Following that logic, we would add that barring investigative alerts seems contrary to the

central requirement of the fourth amendment and Illinois’s search and seizure provision, which

is reasonableness. See People v. Jones, 215 Ill. 2d 261, 268 (2005); People v. Evans, 2017 IL

App (4th) 140672, ¶ 17. After all, probable cause is governed by commonsense, practical

considerations and not by technical legal rules. People v. Sims, 192 Ill. 2d 592, 615 (2000).

¶ 50 We find Justice Mason’s dissent more persuasive and, accordingly, reject defendant’s

contention that the investigative alert in this case was unconstitutional. Defendant’s arrest

incident to the investigative alert was supported by probable cause.

¶ 51 Assuming an Illegal Initial Arrest, It Was Sufficiently Attenuated

¶ 52 Building on this, we further note that, even assuming defendant’s initial Terry stop was an

unjustified illegal arrest, any illegality was extinguished by the presence of probable cause to

arrest based on the investigative alert. Given that fact, we cannot say the evidence collected

while defendant was in custody, including his statement, DNA swab, and lineup identification,

was obtained by exploitation of the allegedly illegal arrest. See People v. Jackson, 374 Ill. App.

3d 93, 101 (2007) (evidence obtained following an illegal arrest need not be suppressed if it

was obtained by a means sufficiently purged from the primary taint of illegality). In evaluating

whether this evidence was the product of an illegal arrest, we consider the proximity in time

between the arrest and incriminating evidence, the presence of intervening circumstances, the

purpose and flagrancy of the police misconduct, and whether Miranda warnings were given.

People v. Morris, 209 Ill. 2d 137, 157 (2004), overruled in part by Pitman, 211 Ill. 2d at 512-

13. 6 Based on those factors, we find the evidence sufficiently attenuated. 7

6

The decision in Morris was overruled to the extent that it was inconsistent with the standard of

review articulated in Ornelas, 517 U.S. 690.

7

In this case, the trial court never considered attenuation, given that it found defendant was not

subject to an illegal arrest. The State argues that if we conclude the Terry stop and arrest based on the

investigative alert were unlawful, we should find defendant’s lineup identifications and confession

attenuated from the taint of his illegal arrest. In other words, the State argues the lineup served as

intervening probable cause, extinguishing the previous illegalities. We find the record and parties’

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¶ 53 As to the intervening circumstances factor, here, we note that the information giving rise

to probable cause was obtained independently of defendant’s alleged illegal arrest. Had the

officers decided defendant’s initial detention was illegal, they could have released him and

then, based on the investigative alert and underlying probable cause independent of his initial

arrest, immediately arrested defendant again. See id. at 159. The evidence collected would

have been admissible. See id. The probable cause that would support a second arrest only

moments after defendant’s first arrest served to break the causal connection between

defendant’s first illegal arrest and the evidence collected many hours later. There was not a

sufficiently close relationship between the alleged underlying illegality and the evidence

collected. See Henderson, 2013 IL 114040, ¶ 45 (requiring a close relationship for application

of the poisonous fruit doctrine). As such, the probable cause to arrest defendant developed

independently of defendant’s arrest, which weighs in favor of finding attenuation.

¶ 54 We consider the next factor, the proximity in time between the illegal arrest and collection

of incriminating evidence. While defendant was allegedly illegally detained for a few minutes

in the early morning hours by Officer Jarvis, he was immediately thereafter in lawful custody

around 2:40 a.m. Defendant made his first incriminating statement to Detective Wiggins that

same day around 5:30 p.m. after he was Mirandized. Following his statement, defendant agreed

to the buccal swab, which eventually revealed his DNA was a match to what was found on the

victims. The lineup identifications also followed. Defendant made his second incriminating

statement around 9 p.m. after being Mirandized, and it was memorialized in writing and

ultimately read into the record at trial. Accordingly, about 14 hours passed before police even

initiated collecting the incriminating evidence. This weighs in favor of finding attenuation

given that defendant was, for a majority of the time, in lawful custody. See Morris, 209 Ill. 2d

at 161.

¶ 55 Nor was the arrest effected in a manner calculated to cause fright, surprise, or confusion,

the final factor that would weigh in favor of finding attenuation. See id. In other words, the

record does not betray a quality of “purposefulness” in that police stopped and then arrested

defendant while on a fishing expedition for incriminating evidence. See People v. Foskey, 136

Ill. 2d 66, 86 (1990); see also Henderson, 2013 IL 114040, ¶ 49 (fact that officers failed to

discern an anonymous tip was insufficient to justify the stop did not constitute intentional or

flagrant conduct).

¶ 56 Given the total circumstances, even assuming defendant’s initial Terry stop and arrest with

the handcuffing was illegal, the taint of the illegal arrest had been purged by the time police

collected any incriminating evidence from defendant. Defendant’s statement, DNA swab, and

lineup identification were not the “fruit” of his allegedly illegal arrest but instead were

attenuated from the illegal arrest.

arguments insufficiently developed to analyze attenuation in that manner. The State’s argument also

does not take into account the DNA buccal swab, which was apparently taken from defendant before

the lineup. Because of that, we have chosen to analyze attenuation after defendant’s arrest based on the

investigative alert, which we find was supported by probable cause and therefore legal. See People v.

Ollie, 333 Ill. App. 3d 971, 985 (2002) (noting that we must consider whether the record on appeal is

sufficiently complete to allow an independent determination on the issue of attenuation).

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¶ 57 CONCLUSION

¶ 58 Based on the foregoing, we hold that police made a proper Terry stop and, on learning of

the investigative alert, this ripened into probable cause to arrest defendant. The investigative

alert was supported by probable cause, and we cannot say it violates the Illinois Constitution.

Last, even assuming the Terry stop and handcuffing were improper, the evidence collected

from defendant was sufficiently attenuated from any illegality. We therefore affirm the

judgment of the trial court denying defendant’s motion to suppress.

¶ 59 Affirmed.

¶ 60 JUSTICE PUCINSKI, specially concurring:

¶ 61 While I agree with the majority in affirming the judgment of the trial court, I do so for

entirely different reasons. The facts of this case are developed fully in the majority opinion,

and I will not repeat them unnecessarily.

¶ 62 Officer Jarvis received a call from the City of Chicago’s Office of Emergency Management

Communications (OEMC) that a black male, wanted for criminal sexual assault and wearing a

green outfit, was at a certain specific location. Officer Jarvis went to that location and found a

black male, in a green outfit, very near the address he was given.

¶ 63 Officer Jarvis correctly stopped the man, based on a reliable tip relayed to him by the

OEMC. Tips given to police agencies are generally considered reliable because the police

agency, here the OEMC, can trace the caller’s information. Officer Jarvis had no reason to

believe that the tip was anything but proper and that he could rely on it. “One factor in

evaluating the reliability of telephone tips is whether the call was made to a police emergency

number.” People v. Shafer, 372 Ill. App. 3d 1044, 1050 (2007)

¶ 64 The defense argues that calls to Chicago’s OEMC give the caller the option of remaining

anonymous, but an officer on the street receiving such a call would not necessarily know

whether the caller had chosen that option. In Navarette, the United States Supreme Court noted

that “[a] 911 call has some features that allow for identifying and tracing callers, and thus

provide some safeguards against making false reports with immunity.” Navarette v. California,

572 U.S. 393, 400 (2014). This was a proper Terry stop, which may be justified by completed

criminal activity. People v. Timmsen, 2016 IL 118181, ¶ 9. On this issue I agree with the

majority.

¶ 65 Where we part ways is when the defendant was arrested. Within minutes of the OEMC call

Officer Jarvis had reason to believe he had found the man wanted in connection with two

violent felonies, identified by the distinctive clothing described, very near the address given.

“In judging a police officer’s conduct, we apply an objective standard, considering whether the

facts available to the officer at the moment of the seizure justify the action taken.” People v.

Hackett, 2012 IL 111781, ¶ 29 (citing People v. Close 238 Ill. 2d, 497, 505 (2010)).

¶ 66 The Terry stop was good. However, that is not the point. What started as a bona fide Terry

stop within seconds morphed into an arrest. Obviously, an officer cannot arrest someone

without stopping that person first. Almost immediately on stopping the suspect, Officer Jarvis

cuffed him and placed him in a police car. “An arrest requires either physical force *** or,

where that is absent, submission to the assertion of authority.” (Emphases omitted.) California

v. Hodari D., 499 U.S. 621, 626 (1991). The majority argues that at this point it was not an

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arrest. But the suspect was not free to leave. He was cuffed and in the backseat of a police car.

A police officer sat in the car with defendant. No reasonable person could believe he or she

could leave under those circumstances.

¶ 67 Once the suspect was arrested, Officer Jarvis checked his in-car computer to see if there

was any information linked to the man’s name. It did not matter. The defendant was already

arrested.

¶ 68 The arrest was good, and the same facts that supported the Terry stop provided Officer

Jarvis with probable cause to arrest. Officer Jarvis had probable cause to believe the suspect

was the man wanted for two felonies. “To effect a warrantless arrest, a police officer must have

probable cause to believe that an offense was committed and that the person to be arrested

committed it.” People v. Kidd, 175 Ill. 2d 1, 22 (1996).

¶ 69 The fact that there was an investigative alert and no warrant was immaterial because the

suspect was arrested before Officer Jarvis ran the name check and learned of the investigative

alert.

¶ 70 This case does not require an analysis of People v. Bass, 2019 IL App (1st) 160640, because

the investigative alert was not the reason this man was arrested. In Bass, the investigative alert

was the only reason the defendant was arrested. Here, the call from OEMC was reliable and

was the reason defendant was arrested.

¶ 71 On general principle, I continue to believe that investigative alerts are unconstitutional.

The State in oral argument for this case acknowledged that there was no warrant and no

affidavit in this case. The Illinois Constitution is specific, and more limiting that the United

States Constitution. The Illinois Constitution states: “The people shall have the right to be

secure in their persons *** against unreasonable searches [and] seizures ***. 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.

¶ 72 In 2012, Presiding Justice Salone and Justice Neville, in their specially concurring opinion

in Hyland, stated that their research at that time “failed to find a constitutional or statutory

provision that authorizes the creation or issuance of an investigative alert.” People v. Hyland,

2012 IL App (1st) 110966, ¶ 40 (Salone, P.J., specially concurring, joined by Neville, J.). It

has been eight years since Hyland, and I cannot find any authority for investigative alerts under

the Illinois Constitution or Illinois statutes either.

¶ 73 The Illinois Constitution does not have a Plan B. On this, the majority and I disagree. We

do agree, however, that the circuit court’s denial of defendant’s motion to suppress should be

affirmed.

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