from the Circuit Court of Cook County. No. 14 CR 15846
Honorable Neera Lall Walsh, Judge, presiding.
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.
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
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
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
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
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
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
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.
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.
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.
visited July 22, 2019) [https://perma.cc/BGH5-E44M]. 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. §
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
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
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 ...