People v. Bass

• Decision Date: 25 July 2019
• Docket Number: No. 1-16-0640,1-16-0640
• Citation: 2019 IL App (1st) 160640,437 Ill.Dec. 430,144 N.E.3d 542
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cordell BASS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 160640

144 N.E.3d 542

437 Ill.Dec. 430

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Cordell BASS, Defendant-Appellant.

No. 1-16-0640

Appellate Court of Illinois, First District, First Division.

Opinion filed July 25, 2019

Modified on denial of rehearing September 30, 2019

JUSTICE HYMAN delivered the judgment of the court, with opinion and supplemental opinion upon denial of rehearing.

¶ 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, 303 Ill.Dec. 128, 851 N.E.2d 26 (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....