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People v. Bass

Court of Appeals of Illinois, First District

July 25, 2019

CORDELL BASS, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CR 15846 Honorable Neera Lall Walsh, Judge, presiding.

          James E. Chadd, Patricia Mysza, and Brian L. Josias, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Douglas P. Harvath, and Tasha-Marie Kelly, Assistant State's Attorneys, of counsel), for the People.

          HYMAN JUSTICE delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion. Justice Mason concurred in part and dissented in part, with opinion.


          HYMAN JUSTICE.

         ¶ 1 Cordell Bass was arrested solely on the authority of what the Chicago Police Department calls an "investigative alert." Department regulations allow officers to arrest people on the basis of an alert where there is probable cause to believe the suspect has committed a crime. But, the regulations allow for police supervisors to internally make that probable cause determination. Officers are not required to take their case for probable cause to a judge, as they would for an arrest warrant. We are asked to determine whether this practice is constitutional. We hold that it is not.

         ¶ 2 Our conclusion is based on the Illinois Constitution. Often (too often for some), if a provision of our constitution dovetails with one in the United States Constitution, we look only to judicial interpretation of the United States Constitution to answer constitutional questions. Our supreme court calls this the "limited lockstep" approach to Illinois constitutional interpretation. We only can depart from "limited lockstep" if the text and history of our constitution differs from the federal constitution. We also can look to preexisting Illinois law or any traditions, values, or public attitudes that qualify as unique to our State. People v. Caballes, 221 Ill.2d 282, 309-10 (2006).

         ¶ 3 A critical difference exists between the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and Illinois's search and seizure clause. Ill. Const. 1970, art. I, § 6. In the portion of the text that pertains to issuing a warrant, the United States Constitution requires probable cause supported by "oath or affirmation" (U.S. Const., amend. IV) the Illinois Constitution requires probable cause supported by "affidavit." Ill. Const. 1970, art. I, § 6. The Illinois Supreme Court, in cases decided close in time to the amendment of our constitution, explained that the requirement of an affidavit goes "a step beyond" the United States Constitution. Importantly, those cases do not limit their reasoning to just the requirement for a warrant but apply it to the requirement for probable cause more generally. A long legal tradition in this State requires more than just the word of an official accuser (usually a police officer) to support a finding of probable cause.

         ¶ 4 Against this rule, the Chicago Police Department has a system where an officer reports a suspected crime to his or her supervisor, not a judge. If the supervisor agrees that there is probable cause, an investigative alert goes out ordering the arrest of a suspect. In other words, police officers can obtain approval for arrests without the one thing the framers of the Illinois Constitution thought most essential-the presentation of sworn facts to a judge.

         ¶ 5 Notably, investigative alerts are not issued instantaneously; in many cases, investigative alerts take the same or more time to procure than a warrant. We understand that some may worry that finding investigative alerts unconstitutional will hamper legitimate law enforcement efforts to prevent crime. We take those concerns seriously, but in Illinois, only the Chicago Police Department appears to use investigative alerts. So our decision merely puts the Chicago police officers on equal footing with their colleagues in other departments throughout the State of Illinois.

         ¶ 6 Background

         ¶ 7 On July 27, 2014, Bass and his girlfriend spent the night at the house of the victim, T.P. In the morning, while T.P.'s boyfriend was in the bathroom, Bass went into T.P.'s room and molested her as she slept. When T.P. turned around and saw Bass, she screamed causing Bass to flee. T.P. reported the incident to police, who issued an investigative alert for Bass's arrest. The investigative alert summarized the incident as reported by T.P. and stated that there was probable cause to arrest Bass. Significantly, the officers did not get a warrant for Bass's arrest.

         ¶ 8 Almost three weeks later, officers pulled over a red minivan for running a red light. Bass was a passenger. For safety reasons, the officers had all of the passengers get out of the van. The officers did not observe Bass violate any laws or act suspiciously. But, they ran a "name check" on him and discovered the investigative alert. On the basis of the investigative alert, the officers arrested Bass.

         ¶ 9 After his arrest, Bass gave a statement to investigators. He admitted that he went into T.P.'s bedroom because she "looked good." He lifted up the sheets and saw that her underwear was partially off. He said that he started to kiss "along the crease of her buttocks, but did not go inside it." Bass stated that T.P. woke up and started yelling before he touched her vagina.

         ¶ 10 Ahead of trial, Bass moved to quash his arrest and suppress his statement. Officers Jeffrey Carrero and Salvador Serrano testified that they were patrolling in the area of Marquette Road and Normal Boulevard in Chicago in a marked squad car at about 1:00 a.m. when they saw a red van fail to stop at a red light. Officer Carrero pulled over the van, told the driver the reason for the stop, and asked the driver for his license. The officer could not recall whether the driver produced his license, but he did ask the driver to get out of the car, which is his usual practice when a driver fails to provide a license. After running a Law Enforcement Agencies Data System check on the driver (based on either a license, an Illinois identification card, or the driver's name), Officer Carrero gave the driver a verbal warning for running the red light but did not issue a ticket for failing to have a license. Officer Carrero also completed a "TSS card," which documents the driver's information, the vehicle's information, the reason for the stop, and whether the vehicle was searched.

         ¶ 11 As Officer Carrero approached the driver, Officer Serrano approached the front passenger side, where Bass was sitting. Officer Serrano asked Bass and the rear passengers to get out for safety reasons. Neither officer saw Bass make any furtive movements or violate any laws.

         ¶ 12 Bass gave Officer Serrano his driver's license. Officer Carrero performed a "name check" and discovered an active investigative alert on Bass that read:

"The victim was asleep in her bed when she was awakened by someone licking her anus. The victim turned around and observed the offender who is her sister's boyfriend and who was spending the night at the victim's residence with her sister. The victim did not give the offender permission to lick her anus."

After a total of eight minutes, the officers arrested Bass.

         ¶ 13 Detective Dwayne Davis explained the circumstances under which he issued the investigative alert. Detective Davis testified that he interviewed T.P. and her boyfriend two days after the incident. T.P. told the detective that she awoke from sleep to discover Bass licking her buttocks and moving into her groin without her consent. T.P's boyfriend told Davis that he saw Bass leave T.P.'s bedroom. Both identified Bass from a photo array. Based on these interviews, Detective Davis put out an investigative alert for Bass but did not obtain an arrest warrant.

         ¶ 14 Following argument, the trial court denied the motion to suppress, finding that officer safety justified ordering the passengers out of the car and that the name check was likewise legitimate. Further, the court held that because the State presented the testimony of the detective who promulgated the investigative alert, probable cause supported Bass's arrest.

         ¶ 15 At trial, T.P. testified that she lives with her boyfriend, Dunkin, and her three children. In July 2014, her sister, Tina, and Tina's three children were staying with them. T.P. had known Bass, who was dating Tina, for a year and a half, and he occasionally stayed over as well.

         ¶ 16 Everyone-T.P., Dunkin, Tina, Bass, and the six children-were staying at the house on July 27, 2014. After a family gathering, Dunkin went to bed at 9 p.m. and Tina joined him at 10 p.m. T.P. went to bed in only a T-shirt and underwear. In the morning, as T.P. slept facedown she awoke to someone touching the lower part of her butt cheeks going into her vagina. T.P. felt a tongue on her anus, and thinking it was Dunkin, she lifted her body up to encourage him. After she lifted her body up, she felt a tongue in her vagina. At that point, T.P. turned over and saw that it was Bass, not Dunkin. T.P. yelled for her sister and jumped out of bed. Dunkin, who had been in the bathroom, came to the door to ask what was wrong. T.P. told him, "this [expletive] was licking my a***." Bass then ran out of the residence, and T.P. and Dunkin called the police. The next day, T.P. identified Bass as in a photo array.

         ¶ 17 Dunkin explained that when he came back from the bathroom he asked Bass what was wrong with T.P. Bass said, "I made a mistake. I walked in the room. She had no clothes." Dunkin went into the bedroom, and T.P. explained that Bass had licked her. Dunkin also identified Bass in a photo array the next day.

         ¶ 18 Detective Davis testified that Bass gave a statement after being arrested during the traffic stop. Bass said that he had come back into the house after walking with Tina and saw T.P. lying in her bed covered by a sheet. Bass lifted up the sheet, saw T.P.'s underwear was in the middle of her buttocks. He admitted to kissing the crease of her buttocks but denied "going inside." Bass explained that he kissed T.P. because she "looked good" and also because he wanted to "get back" at Tina, who had been talking to other men. Bass said that he ran when T.P. started yelling.

         ¶ 19 After trial, the court found Bass guilty on a single count of criminal sexual assault. The court found T.P., her boyfriend, and Detective Davis credible and also referenced Bass's statement to the detective that T.P. "looked good" as evidence that he took advantage of the situation despite knowing he did not have T.P.'s consent. Following the denial of his posttrial motion, the trial court sentenced Bass to eight years in prison.

         ¶ 20 Analysis

         ¶ 21 Bass raises three arguments: (i) the evidence is insufficient to prove that he knew T.P. was unable to give knowing consent, (ii) the trial court erred in denying his motion to suppress statements, and (iii) various monetary assessments should be vacated. We agree that the trial court erroneously denied Bass's motion to suppress, and we reverse his conviction and remand for a new trial. We begin our analysis, however, with Bass's claim as to the sufficiency of the evidence as it will be relevant to our discussion of the remedy.

         ¶ 22 A. Sufficiency of the Evidence

         ¶ 23 Bass argues that the State failed to prove that he did not know of T.P.'s incapability of giving knowing consent. When we review a challenge to the sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the required elements beyond a reasonable doubt. People v. Newton, 2018 IL 122958, ¶ 24. We draw all reasonable inferences in favor of the prosecution, and we will not reverse the trial court's judgment unless the evidence is so "unreasonable, improbable, or unsatisfactory" as to raise a reasonable doubt of Bass's guilt. Id.

         ¶ 24 Bass was charged with criminal sexual assault under section 11-1.20(a)(2) of the Criminal Code of 2012, which provides that a person commits criminal sexual assault by committing "an act of sexual penetration" and "knows that the victim is unable to understand the nature of the act or is unable to give knowing consent." 720 ILCS 5/11-1.20(a)(2) (West 2014). On appeal, Bass challenges the State's evidence on the element of knowledge. By statute, Bass acted with knowledge that T.P. was unable to give knowing consent if he was "consciously aware *** that those circumstances exist." 720 ILCS 5/4-5(a) (West 2014). Ordinarily, circumstantial evidence proves knowledge, and it can be inferred from a defendant's acts, statements, or conduct, as well as surrounding circumstances. People v. Fleming, 2013 IL App (1st) 120386, ¶ 74. In cases arising under section 11-1.20(a)(2), our supreme court has emphasized a case by case approach to determine the defendant's "particular knowledge" of a victim's ability to give knowing consent. People v. Lloyd, 2013 IL 113510, ¶ 33.

         ¶ 25 The State presented more than sufficient evidence to prove Bass knew T.P. unable to give knowing consent. When Bass entered and began licking her, T.P. was asleep on her stomach in the bedroom she shared with her boyfriend. This cuts against Bass's argument on appeal that he made no attempt to conceal his identity or trick T.P.-she could not see him, and he knew she could not see him. While T.P. may have awoken before Bass committed any act of penetration, the fact remains that T.P. had no reason to suspect that anyone other than Dunkin, her boyfriend, was performing these acts.

         ¶ 26 The rest of State's evidence also supports the conclusion that Bass knew T.P. had not given knowing consent. The fact that Bass was T.P.'s sister's boyfriend alone gives rise to an inference that Bass knew T.P. would not welcome his advances. Further, his explanation to Detective Davis that he committed these acts because he thought T.P. "looked good" reveals much. He did not attempt to justify his behavior by claiming that he believed T.P. had given him permission to enter her bedroom and engage in sex acts. T.P.'s maneuvering of her body to give Bass easier access to her private areas proves only that T.P. consented to an act. But this was not knowing consent within the meaning of the statute, as there was no reason for T.P. to believe that Bass was performing these acts or for Bass to believe that T.P. knew it was Bass. For these reasons, we believe the evidence was sufficient to sustain Bass's conviction.

         ¶ 27 B. Motion to Suppress

         ¶ 28 Bass argues that the trial court erred when it denied his motion to suppress on two grounds. He primarily argues that the traffic stop was unlawfully extended under Rodriguez v. United States, 575 U.S., 135 S.Ct. 1609 (2015), because asking him, as a passenger, for his identification and running a name check unreasonably prolonged the stop for reasons unrelated to its initial purpose. Alternatively, Bass argues that even if the stop was conducted in a constitutionally permissible manner, the information that the officers learned after running the name check-in the form of an investigative alert-constitutes an unconstitutional basis on which to arrest him. We agree with both of Bass's arguments.

         ¶ 29 We review a motion to suppress with a two-part standard of review, accepting the facts as found by the trial court unless those findings are manifestly erroneous. People v. Harris, 228 Ill.2d 222, 230 (2008). Applying de novo review, we may make our own determinations as to whether the facts justify the challenged police action as a matter of law. Harris, 228 Ill.2d at 230.

         ¶ 30 Investigative Alerts in Illinois Cases

         ¶ 31 The Chicago Police Department employs two types of investigative alerts. The first is called "Investigative Alert/Probable Cause to Arrest," and it "identifies an individual that is wanted by Bureau of Detective[s] [(BOD)] or Bureau of Organized Crime [(BOC)] investigative personnel concerning a specific crime, and while an arrest warrant has not been issued, there is probable cause for an arrest." (Emphasis added.) Chicago Police Department Special Order No. S04-16, § II.A.1 (eff. Dec. 18, 2018), a7a57be2-12b780f4-30412-b787-088f791c8131bbf7.html (last visited July 22, 2019) []. The second type is called, "Investigative Alert/No Probable Cause to Arrest," and it "identifies an individual that [BOD] or [BOC] investigative personnel seek to interview concerning a specific police matter. However, an arrest warrant for that individual has not been issued, and there is no probable cause to arrest that person on the strength of the investigative alert alone." Id. § II.A.2.

         ¶ 32 The special order also directly instructs police officers confronting a person subject to the "No Probable Cause" alert that they not make an arrest unless the person committed another crime. See id. § V.A.2.a. By contrast, if a "Probable Cause" alert has been issued, the special order instructs the officers to immediately "place the subject into custody if not already in custody." Id. § V.A.1.b. The City of Chicago has affirmatively represented in federal litigation that these are the two types of investigative alert orders. E.g., Sanders v. Cruz, No. 08 C 3318, 2010 WL 3004636, at *3 (N.D. Ill. July 29, 2010).

         ¶ 33 This court has described either the issuance of investigative alerts or officers' knowledge that an alert had or had not been issued in the factual summaries of a heap of cases (see appendix, infra ¶ 114). This court has also mentioned investigative alerts as non-dispositive components of other legal arguments in a variety of contexts (see infra ¶ 114). And these references represent only published decisions. Many more cases discuss investigative alerts under their former name, "stop orders." E.g., People v. Cokley, 347 Ill.App.3d 292, 298-300 (2004), vacated, 211 Ill.2d 589 (2004) (supervisory order directing appellate court to retain jurisdiction in event that outcome of suppression hearing on remand did not result in new trial). Thus, while our research has uncovered no other jurisdiction in Illinois that uses a system like investigative alerts, the practice of issuing investigative alerts and acting on them has had a recurring appearance in this Appellate District.

         ¶ 34 Prolific though it may be, the practice of arrests based on investigative alerts has been strongly condemned in this court. E.g., People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 39-52 (Sal one, J., specially concurring, joined by Neville, J.). Justice Sal one's concurrence in Hyland focused heavily on the lack of judicial review, which allows police "unbridled power to take into custody persons without the benefit of an arrest warrant." Id. ¶ 46. While Justice Salone opined on the propriety of investigative alerts, critical to the decision in Hyland was the court's conclusion that the officers did not have probable cause to arrest the defendant. Id. ¶ 39. So, while Justice Salone raised many important prudential concerns, Hyland itself did not pose the constitutional question we confront here.

         ¶ 35 Investigative Alerts and the United States Constitution

         ¶ 36 Unlike Hyland, we are confronted with the only circumstance in which the constitutional question appears at all, which is where an officer had become aware of facts amounting to probable cause. If we were convinced that at the time of Bass's arrest no probable cause existed in the first place, then we could so hold and go no further because our conclusion would be the same regardless of whether the police issued an investigative alert or a neutral magistrate issued a warrant. See, e.g., People v. Manzo, 2018 IL 122761, ¶ 61 (reversing trial court's determination that probable cause existed to issue warrant). But, we are not asked to decide whether there was probable cause for Bass's arrest; we are asked to decide who has the constitutional authority to make that determination. That question only arises when there is probable cause to arrest either way.

         ¶ 37 Under the United States Constitution, the existence of probable cause also answers the question. It is well-settled that the fourth amendment allows for warrantless arrests outside the home as long as the police have probable cause to arrest the suspect. See United States v. Watson, 423 U.S. 411, 417 (1976); People v. Tisler, 103 Ill.2d 226, 237 (1984). Because Bass has conceded that the facts in the investigative alert amounted to probable cause, his warrantless arrest did not violate the fourth amendment to the United States Constitution.

         ¶ 38 Investigative Alerts and the Illinois Constitution

         ¶ 39 Our agreement that the existence of probable cause satisfies the United States Constitution does not end the inquiry as to the Illinois Constitution. Bass's original brief cited the Illinois Constitution, but did so without exposition on why the result might differ by applying its unique language and the precedent interpreting it. We requested supplemental briefs from the parties on the Illinois constitutional question and, after reviewing them, agree that the language of the Illinois Constitution and precedent interpreting it supports Bass's argument.

         ¶ 40 There are several approaches to state constitutional interpretation ranging from true "lockstep," viewing interpretations of the federal constitution as binding, to "primacy" approaches, viewing interpretations of the federal constitution as mere guidance. See Caballes, 221 Ill.2d at 307-09. Our supreme court has called it an "overstatement" to say that Illinois employs a true "lockstep" approach to interpretation of provisions of our constitution that have federal constitutional analogs. Id. at 309. Instead, as both parties acknowledge in their supplemental briefs, Illinois follows a "limited lockstep" approach, which assumes the primacy of federal constitutional interpretation but looks to the Illinois Constitution for any gap-filling potential it may have. Id.

         ¶ 41 The State argues that the limited lockstep approach "demands *** strict conformance to the United States Supreme Court and Constitution." Our supreme court has not taken an all-or-nothing view. Instead, when determining whether to depart from limited lockstep, Illinois courts look to the language of our constitution or the debates and committee reports from the constitutional convention. Id. at 310 (citing Tisler, 103 Ill.2d at 245). For further guidance, we can look to our own state traditions and ...

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