No. 1-17-3101

SECOND DIVISION June 25, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 16 CR 7741-01 ) HOMER MCGREGORY, ) ) The Honorable Defendant-Appellee. ) Carol M. Howard, ) Judge Presiding.

______________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Hyman and Mason concurred in the judgment and opinion.

OPINION

¶1 The State appeals from the Cook County circuit court’s grant of defendant Homer

McGregory’s motion to suppress evidence, arguing that the trial court erred in concluding that

the eight-month delay between the seizure of defendant’s property and the obtention of a search

warrant to search the contents of that property rendered the seizure unreasonable. For the reasons

that follow, we affirm.

¶2 I. BACKGROUND

¶3 On May 13, 2013, the Chicago Police Department (CPD) executed a search warrant on

defendant’s home in search of drugs and weapons. While there, the executing officers found and 1-17-3101

seized computers and other equipment often associated with the manufacture of fraudulent credit

cards. The equipment remained in the possession of the CPD until November 1, 2013, at which

time Agent Gustav Woerner of the United States Secret Service took possession of it as part of

an investigation into defendant in connection with a credit card fraud scheme. In January 2014,

Woerner obtained a search warrant to examine the contents of the computers and equipment,

which revealed credit card numbers and other evidence of identity theft. Thereafter, defendant

was charged with identity theft (720 ILCS 5/16-30(a)(2) (West 2012)). 1

¶4 Defendant filed a motion to suppress evidence, arguing that the initial seizure of the

equipment was unreasonable, as was the delay between its seizure and the obtention of the

warrant to search the contents of the equipment. In response, the State argued that the seizure of

the equipment was reasonable, because it was in plain view at the time that the CPD executed its

search warrant for narcotics and weapons on May 13, 2013. As for the delay between the seizure

of the equipment and the obtention of the search warrant for the contents of the equipment, the

1 It appears that only those documents relevant to the issues on appeal were included in the record, and the indictment was not among them. The State, however, included the indictment in its appendix. Generally, it is improper for a party to include in its appendix documents that are not included in the record on appeal. Pine Top Receivables of Illinois, LLC v. Transfercom, Ltd.,

, ¶ 2 n.1. Because the contents of the indictment are not relevant to the issues on appeal, however, its inclusion in the appendix is harmless. We pause only to note an irregularity in the indictment for purposes of being accurate in our recitation of the facts of this case. The indictment alleged that defendant committed the offense of identity theft on May 13, 2013, and cited section 16G-15(a)(2) of the Criminal Code of 1961 (720 ILCS 5/16G-15(a)(2) (West 2010)) as the statute defendant violated. We observe that section 16G-15(a)(2) was repealed effective January 1, 2012 (Pub. Act 97-597, § 6 (eff. Jan. 1, 2012)), over a year before defendant is alleged to have committed the offense of identity theft. Nevertheless, on May 13, 2013, there was in effect section 16-30(a)(2) of the Criminal Code of 2012 (720 ILCS 5/16- 30(a)(2) (West 2012)), which defined the offense of identity theft as it was alleged in the indictment against defendant. Accordingly, it appears that the reference to the repealed identity theft statute in the indictment was a typographical error, which defendant does not allege—at least to us—prejudiced him. See People v. Burke,

(2005) (a defect in a statutory citation in an indictment does not warrant reversal where the indictment adequately informs the defendant of the charges and the defendant cannot demonstrate prejudice from the incorrect citation); see also People v. Melton,

(1996) (“Although the statute cited in the charging documents was no longer in effect, the criminal offense of child endangerment was still embodied in the Criminal Code. Accordingly, defendants’ claim that they were convicted of a nonexistent crime is without merit.”).

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State argued that it was not unreasonable, because the officers were diligent in obtaining the

search warrant and defendant did not request the return of the equipment, did not allege any

harm to his possessory interest in the equipment, and did not argue that he needed the equipment

for legitimate reasons.

¶5 At the evidentiary hearing on defendant’s motion to suppress, two witnesses testified.

First, Officer Vaneond Chinchilla of the CPD testified that he was present on May 13, 2013,

when the search warrant for narcotics and weapons was executed at defendant’s home. The

officers did not find any guns or drugs in defendant’s home, but they did find four laptops, a

credit card duplicator, a strip reader, several computers, an embossing machine, and credit cards

and identification cards bearing names other than defendant’s. Based on his training and

experience, Chinchilla believed the equipment to be used to make credit cards to steal people’s

identity. Defendant stated that he bought the equipment online and that some of the machines

worked 30% of the time. At the time the equipment was seized, defendant did not tell Chinchilla

that he wanted the equipment back, and Chinchilla did not give defendant a receipt for the

equipment. After the seizure of the equipment, defendant never contacted Chinchilla to request

the return of the equipment.

¶6 Next Agent David Woerner, formerly of the United States Secret Service, testified that

while employed with the Secret Service, his duties consisted of providing protection to the

president of the United States and other dignitaries and investigating financial crimes, such as

identity theft, credit card fraud, and bank fraud. When these duties conflicted, his protection

duties took precedence.

¶7 In 2013, Woerner was conducting an investigation into defendant based on a tip from an

informant that defendant was involved in credit card and tax fraud. The informant also told

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Woerner that the CPD had executed a warrant on defendant’s home. Woerner contacted the CPD

and was told that officers had recovered credit card manufacturing equipment from defendant’s

home, i.e., laptops, embossing machine, credit card reader reencoder, etc. In mid-May or June

2013, Woerner viewed the equipment seized from defendant’s home, which was then being

stored at the CPD’s Homan Square facility. Woerner did not take possession of the equipment at

that time, because he did not have the paperwork ready to carry out a transfer of chain of

custody.

¶8 At the same time that Woerner was investigating defendant, the Internal Revenue Service

(IRS) was conducting a similar investigation into defendant. It took some time for the two

agencies to determine which of them would take possession of the equipment. During that time,

Woerner did not take any steps to obtain a search warrant for the equipment, because he did not

want to duplicate or be a nuisance in the IRS’s investigation. After it was determined in

September 2013 that the IRS would not pursue its investigation of defendant, Woerner proceeded

with attempting to gain possession of the equipment. He was notified that the equipment had

been moved from the Homan Square facility. It was not clear where the equipment had been

moved to, so Woerner requested assistance from Patty Dolton, the CPD’s “TASC force officer

assigned with the [Secret Service].” 2

¶9 During the time that he was trying to locate the equipment, Woerner continued to pursue

other avenues of investigation against defendant, namely, maintaining contact with the

informant, conducting standard database searches, and conducting limited surveillance. During

this time, Woerner was also working on three to four federal cases and two to three state cases.

He was the only agent assigned to work on these cases. In addition, during 2013, Woerner

2 The record does not define the acronym “TASC” or describe the duties of a TASC force officer.

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worked a number of protection assignments, including at the Obama residence in Chicago, which

required weeklong assignments. Because of budget issues at the time, Secret Service agents

worked a “flex day schedule,” which meant that if an agent worked on a weekend, he or she

would have to take time off during the week to compensate. When he was not working on

another one of his cases and was not working a protection assignment, Woerner was working on

his investigation into defendant.

¶ 10 On October 31, 2013, Dolton finally notified Woerner that the equipment had been

moved to a bulk storage facility. The following day, on November 1, 2013, Woerner took

possession of the equipment. After he had possession of the equipment, Woerner began work on

drafting the affidavit in support of a search warrant, which required verifying the machines’

serial numbers and identifying all the types of documents the Secret Service sought to recover

from the equipment. Woerner testified that he could not have begun his work on the affidavit and

complaint for search warrant prior to having possession of the equipment, because he would not

have been able to access the necessary information. For example, he testified that he could not

have gotten the necessary information during his initial viewing of the equipment, because he

would have had to contact banks to verify whether the seized credit cards belonged to the

identified individuals and because he would have had to have taken apart some of the machinery

to obtain the serial numbers. This was not something Woerner could have done in a warehouse

setting. In addition, it was Secret Service policy that any property for which an agent was going

to seek a search warrant first had to be in Secret Service custody. Woerner could not delegate the

preparation of the application for the search warrant to another agent, because all the other agents

had the same busy schedule as him.

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¶ 11 In January 2014, Woerner presented his application for search warrant to the trial court.

He was not able to do it sooner, because of the difficulty coordinating his, the trial court’s, and

the State’s schedules. Upon execution of the search warrant, Woerner found evidence of credit

card numbers and identity theft on the equipment.

¶ 12 To Woerner’s knowledge, defendant never asked him or anyone else with the Secret

Service for the return of the equipment. Woerner was aware, however, that at the time the

equipment was initially seized, defendant requested that the equipment not be taken.

¶ 13 In his argument at the hearing, defendant glossed over his contention that the initial

seizure of the equipment was unreasonable. Instead, defendant focused on the reasonableness of

the delay in obtaining a search warrant for the contents of the equipment, arguing that the State

did not offer a reasonable explanation for the eight-month delay 3 in obtaining the warrant. The

trial court agreed with defendant, finding that the primary issue in the case was the

reasonableness of the delay in obtaining the search warrant and that the eight-month delay in this

case was not reasonable. Accordingly, the trial court granted defendant’s motion to suppress as it

pertained to the evidence downloaded from the equipment; all other evidence was to be admitted.

¶ 14 Thereafter, the State filed a timely certificate of impairment and notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 On appeal, the State argues that the trial court erred in granting defendant’s motion to

suppress evidence, because the delay in obtaining the search warrant was not unreasonable under

the circumstances. In the alternative, the State argues that the exclusionary rule should not be

3 We note that the parties and the trial court referred to the delay between the initial seizure of the equipment in May 2013 and the obtention of the search warrant in January 2014 as nine months. According to our calculations, however, there are only eight months between May and January. Ultimately, the difference between eight and nine months does not make a difference in our analysis or the conclusion we reach.

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applied in this case. We do not find the State’s contentions persuasive and affirm the trial court’s

decision.

¶ 17 There is no dispute on appeal that the initial seizure of the equipment was justified based

on probable cause, nor is there any dispute that a search warrant was required before the

equipment’s contents could be searched. See Segura v. United States,

(1984)

(“[T]he Court has frequently approved warrantless seizures of property, on the basis of probable

cause, for the time necessary to secure a warrant, where a warrantless search was either held to

be or likely would have been held impermissible.”). A seizure, although reasonable at its

inception, may become unreasonable, however, because of its duration.

. In other

words, once law enforcement officers have seized an item, they must obtain a search warrant

within a reasonable time. United States v. Burgard,

(7th Cir. 2012).

¶ 18 In determining whether a seizure became unreasonable, we “ ‘must balance the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion.’ ” United States v.

Stabile,

(3d Cir. 2011) (quoting United States v. Place,

(1983)). On the individual’s side, the primary concern is with the invasion of the individual’s

possessory interest in the property, as a seizure does not generally affect an individual’s privacy

or liberty interests. Burgard,

. The longer that the seizure lasts, the greater the

invasion on the individual’s possessory interest.

Delays also affect the integrity of the

criminal justice system in that “they prevent the judiciary from promptly evaluating and

correcting improper seizures.”

In addition, an individual’s assertion of his or her possessory

interest in the subject property, i.e., by checking on the status of the procedure or requesting its

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return, is helpful—although not essential—evidence that the seizure of the property affected the

individual’s possessory interests.

¶ 19 On the other side of the balance is the State’s interest. The State’s interest is greater in

seizures based on probable cause rather than those resting only on reasonable suspicion.

Thus, greater delays are tolerated in cases involving probable cause seizures than those involving

reasonable suspicion seizures.

The greatest delays, however, will be tolerated in cases where

the seizure was based on consent, because such seizures do not infringe the individual’s

possessory rights. Stabile,

.

¶ 20 It is also important to consider the diligence of law enforcement officers in pursuing their

investigation. Burgard,

.

“When police act with diligence, courts can have greater confidence that the police

interest is legitimate and that the intrusion is no greater than reasonably necessary.

[Citation.] When police neglect to seek a warrant without any good explanation for that

delay, it appears that the state is indifferent to searching the item and the intrusion on an

individual’s possessory interest is less likely to be justifiable.”

¶ 21 We will not disturb the trial court’s factual findings unless they are against the manifest

weight of the evidence, but its decision on the legal question of suppression will be reviewed

de novo. People v. Veal,

.

¶ 22 The evidence presented at the hearing on the motion to suppress is undisputed; the parties

only dispute the import of those facts on the assessment of the reasonableness of the delay. After

reviewing the record, we conclude that the trial court did not err in finding that the eight-month

delay in obtaining the search warrant for the contents of the equipment was unreasonable. Here,

the delay between initially seizing the equipment and obtaining the search warrant was

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inordinately long—eight months. This length of delay is far longer than any of the delays found

to be reasonable in the cases cited by the parties. See Illinois v. McArthur,

(2001) (2 hours); United States v. Johns,

(1985) (3 days); Segura,

(overnight); Burgard,

(6 days); United States v. Martin,

(2d Cir. 1998) (11 days). In fact, the longest delay in any of the cases cited by the parties was

three months in the case of Stabile. Stabile,

. Accordingly, we find the length of

the delay in this case to be extraordinary. See Burgard,

(“[T]he ‘brevity’ of the

seizure is ‘an important factor’ for us to weigh.”). Because the delay in this case was so long, the

intrusion on defendant’s possessory interest in the equipment was quite great. See

(“[A]

longer seizure is a greater infringement on possession than a shorter one.”).

¶ 23 We also observe that defendant asked the seizing officers to not seize the equipment. This

evidenced defendant’s possessory interest in the equipment and the effect its seizure had on that

interest.

¶ 24 On the other side of the balance, we note that the initial seizure was based on probable

cause. As the State points out, this evidences a greater interest by the State than if the initial

seizure was based on reasonable suspicion. This is, however, but one factor of many to be

weighed in the analysis of whether the delay in obtaining a search warrant was unreasonable; it

does not automatically justify any delay in obtaining a search warrant.

¶ 25 Finally, with respect to the diligence of law enforcement, we find the diligence lacking in

this case. Although we do not believe that the officers and agencies involved in this case

completely or intentionally abdicated their duties, we cannot find that the necessary urgency in

obtaining a warrant was shown. The equipment was seized on May 13, 2013. There was nothing

to stop the CPD from obtaining a warrant immediately, because it already had probable cause.

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Woerner viewed the equipment either in mid-May or mid-June (his testimony conflicted on this

point), after he was informed of the seizure by his informant. There was no evidence that any

action was taken by the CPD or any other agency to obtain a search warrant for the equipment

prior to Woerner viewing the equipment, nor was there any explanation offered for the lack of

action prior to Woerner’s viewing of the equipment. Thus, up to a month and a half of the eight-

month delay is completely unexplained.

¶ 26 After Woerner viewed the equipment, still no action was taken by Woerner or any other

agency to pursue a search warrant until November 2013. Woerner testified that the delay on his

part was attributable in part to the fact that, until September 2013, it was unknown whether the

IRS would also pursue possession of the equipment. During this time, Woerner did not take any

steps to pursue a search warrant because he did not want to duplicate or be a nuisance in the

IRS’s investigation. After the IRS determined it would not pursue possession of the equipment,

Woerner claimed he could not pursue a search warrant because the equipment could not be

located by the CPD. There was no evidence as to why no other agency took steps to secure a

search warrant between the time Woerner first viewed the equipment and the time that the CPD

located the equipment in its warehouse at the end of October 2013. It does not appear to us that

the CPD had any intent of pursuing an investigation into the equipment, and in fact, the State

contends that any such investigation would have been outside the CPD’s purview. Nevertheless,

the CPD continued to hold the equipment.

¶ 27 Nothing during this time period—between Woerner’s first viewing of the equipment and

October 31, 2013—demonstrates diligence in pursuing a search warrant. Although Woerner

continued his investigation into defendant, he did nothing from the time he viewed the

equipment until September 2013 (approximately two to three months) to pursue a search warrant,

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not because he was prevented from doing so, but because he did not want to step on the toes of

the IRS. During this time, the CPD also did not take any action to obtain a search warrant.

Moreover, during this time, the CPD—whether due to inadequate evidence handling policies, a

lack of supervision or training, or inadvertent mistake—was unable to locate the equipment,

which added approximately two months to the delay in Woerner obtaining a search warrant. By

November 1, 2013, when Woerner finally took possession of the equipment, no action

whatsoever had been taken to obtain a search warrant for six months, and the only reasons given

were that Woerner did not want to step on the toes of the IRS and the CPD could not locate the

equipment.

¶ 28 We pause here to note that the arguments of the State, both in the trial court and on

appeal, imply that we should consider only Woerner’s actions in determining whether the delay

in obtaining the search warrant was unreasonable, because he was the investigating officer, and

that the actions (or inactions) of the CPD or other involved law enforcement agencies should not

be considered. We disagree. Defendant was deprived of his equipment for eight months pending

the obtention of the search warrant. The question before us is whether the total delay of eight

months was reasonable. Whether portions of the delay were attributable to Woerner or to the

CPD is irrelevant. It would be unfair to conduct an end run around an otherwise unreasonable

delay by ignoring portions of the delay because they were caused by a law enforcement agency

other than the primary investigating agency. At the end of the day, whether the delay was caused

by Woerner or the CPD, the result was the same: defendant’s possessory interest in the

equipment was invaded by law enforcement for eight months.

¶ 29 After Woerner took possession of the equipment, it took him two months to complete and

present his application for the search warrant. According to the evidence, this process was

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delayed by the fact that Woerner was the only agent working on the case, he had multiple other

pending cases, he was required to spend time on his protection duties, his working hours were

limited due to budget concerns, and he had to coordinate his schedule with that of the State and

the trial court. In Stabile, the Third Circuit held that a three-month delay in obtaining a search

warrant was justified in part because the lead Secret Service agent on the case was working on

multiple other cases and had to perform protection duties. Stabile,

. Despite

holding that the three-month delay was reasonable, the Third Circuit made it a point to note that

the delay was not unavoidable, the court was troubled by the delay, and under different

circumstances, it might have reached a different conclusion.

Even if we were to accept that

Woerner’s other duties, his limited work hours, his busy schedule were reasonable explanations

for the two months that passed between the time Woerner took possession of the equipment and

the time he obtained the search warrant, they still do not explain the six-month delay that

preceded Woerner taking possession of the equipment.

¶ 30 Upon considering all the factors, we cannot agree with the State’s claim that the eight-

month delay in this case was reasonable under the circumstances. This case involves an

extensive delay—one that exceeds by five months the longest delay in all the cases cited by the

parties. Defendant asserted his possessory interest in the equipment when he asked on May 13,

2013, that the officers not seize the equipment. Most important in this case is the fact that, during

six of the eight months of delay, there was no diligence whatsoever by law enforcement. First,

law enforcement did not take any action at all between the equipment’s seizure and Woerner’s

initial viewing of it. After that, until September 2013, no action was taken because of interagency

niceties, and thereafter, until November 1, 2013, no action was taken because law enforcement

could not find the equipment.

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¶ 31 Against our conclusion, the State argues that the invasion of defendant’s possessory

interest in the equipment was lessened because defendant did not request the return of his

property at any point, defendant did not allege that he was harmed by the delay in obtaining the

search warrant, and defendant did not have a legitimate interest in the equipment. We disagree.

First, as discussed above, although defendant might not have requested the return of the

equipment following its seizure, at the time of its seizure, he did request that the equipment not

be seized. Moreover, although a defendant’s assertion of his possessory interest in the seized

property is helpful evidence that the seizure affected his possessory interest, it is not essential.

Burgard,

. Further, we agree with the trial court’s statement during its oral

ruling on the motion to suppress that “if the police or government seizes someone’s property, [it

is not] up to that individual to constantly beg the government for the property back.”

¶ 32 We similarly find that the State’s other contentions—that defendant did not allege any

harm from the delay and that he did not have a legitimate interest in the equipment—are also

without merit. The State has not cited any authority for the proposition that defendant must suffer

some tangible harm by the delay or that law enforcement is permitted to hold seized property

indefinitely so long as the individual from whom the property was seized does claim any harm.

See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring that the argument section of an

appellant’s brief contain “the contentions of the appellant and the reasons therefor, with citations

of the authorities and the pages of the record relied on”); see also Thrall Car Manufacturing Co.

v. Lindquist,

(1986) (“A reviewing court is entitled to have the issues

on appeal clearly defined with pertinent authority cited and a cohesive legal argument presented.

The appellate court is not a depository in which the appellant may dump the burden of argument

and research.”). As for the argument that defendant did not have or allege a legitimate interest in

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the equipment, again, the State does not cite any authority for the proposition that defendant was

required to demonstrate that he had legitimate uses for the equipment in order to be entitled to

relief for an unreasonable delay in obtaining a search warrant. See Ill. S. Ct. R. 341(h)(7) (eff.

May 25, 2018); see also Thrall Car Manufacturing Co.,

. Moreover, the

State’s claim that the forensic scans of the equipment revealed no legitimate uses is entirely

conclusory and not supported by any citation to evidence in the record. In addition, it is improper

to use the fruits of a search to determine its legality, which is exactly what the State seeks to do

by arguing that the search of the equipment did not reveal any legitimate uses for the equipment.

See People v. Bankhead,

(1963) (“[T]he legality of a search is not to be

determined by its results ***.”).

¶ 33 In sum, for all the reasons discussed above, we conclude that the trial court did not err in

holding that the balance of the interests here dictated a conclusion that the delay between the

seizure of the equipment and the obtention of the search warrant was unreasonable.

¶ 34 The State argues in the alternative that, even if we conclude that the delay in obtaining

the search warrant was unreasonable, the exclusionary rule should not be applied in this case.

According to the State, the purposes of the exclusionary rule are not served by applying the rule

in this case, because the delay in obtaining the search warrant was not the result of any single

actor’s actions, but rather the culmination of actions of multiple, uncoordinated agencies.

¶ 35 The Constitution does not require the application of the exclusionary rule. United States

v. Espinoza,

(7th Cir. 2001). The introduction at trial of illegally obtained

evidence is not, by itself, a violation of a defendant’s constitutional rights.

Because the

indiscriminate application of the exclusionary rule would impede the truth-finding function of

the trial system and generate disrespect for the administration of justice, it should be applied only

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where its remedial objectives are best served.

. The purposes of the exclusionary

rule are to “deter illegal police conduct by punishing the behavior and removing the incentive for

its repetition.”

.

¶ 36 Defendant argues in response that the State has waived any contention regarding the

application of the exclusionary rule by failing to make the argument in the trial court. The State

admits that its contention that the exclusionary rule should not be applied in this case was not

“extensively made or fully developed” in the trial court. It also argues, however, that, because it

argued in the trial court that the evidence should not be excluded and because the question of

whether the exclusionary rule applies is closely related to whether the fourth amendment was

violated, its argument should not be considered waived. We disagree that the question of whether

the delay in obtaining the search warrant was unreasonable is closely related to the question of

whether the exclusionary rule should be applied. The analysis applying to each question is

entirely different from the other, and the answer to neither question is dependent on the answer

to the other. In fact, courts have made clear that “[t]he question whether the exclusionary rule’s

remedy is appropriate in a particular context has long been regarded as an issue separate from the

question whether the Fourth Amendment rights of the party seeking to invoke the rule were

violated by police conduct.” Illinois v. Gates,

(1983). Accordingly, because

the State failed to argue in the trial court that the exclusionary rule should not apply, we agree

with defendant that the State waived this contention. See People v. Capuzi,

(1999) (where the State failed to raise the issue of standing in the trial court during the

motion to suppress, it could not raise it for the first time on appeal).

¶ 37 Waiver aside, we are not convinced that the application of the exclusionary rule would be

pointless in this case. Although it is true that both the CPD and the Secret Service contributed to

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the delay in obtaining the search warrant for the equipment, the application of the exclusionary

rule here encourages both agencies to improve their practices in cases such as this, namely, better

training, better supervision, facilitating better interagency communication and cooperation, and

improving property tracking policies and practices.

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 40 Affirmed.

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