Illinois appeals court: Chicago police cannot decide on probable cause without judicial review

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A divided Illinois appellate court on Thursday struck down a longstanding Chicago police department practice in which supervisors could order police to arrest suspects they encounter on the street without the need for a search warrant or the officer observing any crime.

That practice, called an “investigative alert,” violates the state constitution by obtaining “approval for arrests without the one thing the framers of the Illinois Constitution thought most essential—the presentation of sworn facts to a judge,” states the majority opinion, authored by Illinois Appellate Judge Michael B. Hyman.

Hyman noted the issue was not one of speed: “The alerts are not issued instantaneously; in many cases, investigative alerts take the same or more time to procure than a warrant.”

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While such an arrest might be warranted under the U.S. Constitution, which focuses on whether probable cause existed at the time of arrest, the majority focused on the more narrow interpretation of search and seizure law under the Illinois constitution.

Hyman was joined in the opinion by Appellate Judge Aurelia Pucinski.

Neither spokesmen for the police department nor the city law department could be reached for comment late Tuesday.

Writing separately, Appellate Judge Mary Anne Mason wrote that she agreed with the majority that the defendant in the case, Cordell Bass, deserved a new trial. But Mason issued a partial dissent, sharply criticizing the majority for reaching a constitutional issue improperly because, she wrote, it was not an issue on which Bass based his appeal.

“The majority has decided that the argument Bass should have made, and which warrants reversal, is one his counsel never elected to advance and one that the State has never had an opportunity to address,” Mason wrote,

The majority opinion rejected Bass’s criticism, noting that the original brief by Bass contended the arrest had violated the state constitution. Quoting a U.S. Supreme Court phrase cited by Mason, the majority opinion responded: “We have not ‘‘sall[ied] forth’ …looking for wrongs to right.” Hyman wrote that it is “not unusual” for courts to find different rationale for its decision than that relied upon by litigants.

The case against Bass involved a July, 2014 incident in which he and his girlfriend spent the night at the home of the victim. When the victim’s boyfriend went to the bathroom, Bass entered the victim’s bedroom and molested her while she slept. When she awoke and screamed, Bass fled and she called police.

The officers, according to the record, did not seek a warrant. Instead, they issued an investigative alert for Bass. And three weeks later, when Bass was a passenger in a car that was pulled over, police ran his name through their database though there was no evidence he had done anything wrong: “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, the majority opinion states.“On the basis of the investigative alert, the officers arrested Bass.”

Officer Jeffrey Carrero later testified the incident began when he and his partner saw a red van drive through a red light at 1 a.m. one morning. They pulled the car over, and Carrero elected to only give the driver a warning. Meanwhile his partner, Salvador Serrano, ordered the passengers out for safety reasons; took the identification card of Bass. When the officers discovered the identification alert, he was then arrested.

Bass told investigators that he had gone into the victim’s bedroom because “she looked good,” and began touching her in her sleep.

The trial judge, Cook County Appellate Judge Neera Walsh, declined to suppress that statement at a pretrial hearing, ruling that officers had probable cause to arrest Bass.

After hearing the evidence, including from the victim, Walsh convicted Bass of a single count of sexual assault and sentenced him to eight years in prison.

The majority noted 22 appellate cases in recent years in which  the investigative alerts have been raised. The majority said it was concerned about how the ruling might hamper police officers, but wrote that Cook County is the only jurisdiction in Illinois to use this system, adding, “our decision merely puts the Chicago police officers on equal footing with their colleagues in other departments throughout the State of Illinois.”

But Mason, in her own opinion, wrote, “The source of these “facts” is undisclosed, and the majority’s reliance on them is improper.”

She concluded,  “I can discern no apparent explanation for the conclusion that this case at this time presents the ideal opportunity to resolve a constitutional issue of first impression raised sua sponte by the majority. For all of the foregoing reasons, I respectfully dissent.”

But as it ordered a new trial for Bass, the majority concluded the constitutional issue was clear:  “Taking together the text of our constitution and its historical interpretation by our supreme court, we conclude that the Illinois Constitution requires, in the ordinary case, a warrant to issue before an arrest can be made. Arrests based on investigative alerts violate that rule.”