NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

SECOND DIVISION November 22, 2022 No. 1-21-0508 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County ) v. ) No. 08 CR 15946 01 ) JUSTIN WALKER, ) The Honorable ) Thomas J. Byrne, Petitioner-Appellant. ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.

ORDER

¶1 Held: Summary dismissal of postconviction petition asserting claim that petitioner’s state constitutional rights were violated by his arrest pursuant to investigative alert is reversed and remanded for second-stage postconviction proceedings.

¶2 Petitioner Justin Walker appeals from the trial court’s summary dismissal of his pro se

postconviction petition. On appeal, he contends that his petition presented arguable claims that his

state constitutional rights were violated by (1) his arrest pursuant to an investigative alert instead

of a warrant and (2) the prohibition under truth-in-sentencing laws on his ability to earn good-

conduct credit to reduce his 30-year sentence for an offense committed at age 17. For the reasons No. 1-21-0508

that follow, we reverse this summary dismissal and remand for second-stage proceedings.

¶3 BACKGROUND

¶4 Petitioner was convicted in a jury trial of first-degree murder for the death of Clarence “Red”

Harrington in 2008. The evidence adduced at petitioner’s trial is set forth in detail in this court’s

order on direct appeal. People v. Walker,

. We summarize here only

that evidence necessary to an understanding of the case and the issues involved in this appeal.

¶5 Prior to trial, petitioner moved to quash his arrest and suppress evidence on the grounds that,

inter alia, there was no probable cause for his arrest. He asserted that the only information leading

to his arrest had been given to police by Lakesha Royal after she was arrested on an unrelated

narcotics search warrant on April 4, 2008. He alleged that, on April 21, 2008, the Chicago Police

Department had issued an “Investigative Alert” for petitioner but never obtained a warrant for his

arrest. Petitioner was arrested the following day. He subsequently made statements to police and

was identified in a lineup as having been present when Harrington was robbed and beaten.

¶6 At the suppression hearing, two detectives from the Chicago Police Department testified

about their respective interviews of Royal. Detective John Valkner testified that Royal recounted

that in January 2008, the janitor at her apartment building knocked on her door and told her that

four people were on the second floor beating a man. Royal went there and saw four young black

males, whom she did not know but recognized as a group that sometimes loitered in her apartment

building, run down the stairs out of the building. Royal did not see any of them touch or take

anything from the victim and only saw them running. Detective Reuben Weber testified that Royal

told him she had seen the four men beating Harrington and identified petitioner in a photo array as

one of the offenders she saw fleeing the scene.

¶7 Also testifying at the suppression hearing was Detective Michael Landando, who testified

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that after receiving the above information he went to the apartment building and spoke to James

“JB” Williams, who recounted witnessing a group of four young black males that regularly loitered

in the apartment building standing over a person laying on the floor, beating and punching him.

Williams knocked on Royal’s door to get help in breaking up the fight, whereupon the four

offenders ran away. Williams showed Detective Landando and his partner the location where this

had occurred, and the detectives observed blood splatter on the carpets and baseboards. Detective

Landando testified that, after attempting for 10 days to locate petitioner near his home, he issued

an “investigative alert with probable cause” for petitioner’s arrest. He did this based on the

identification by Royal, the corroborating interview with Williams, and the evidence recovered.

Petitioner was arrested the following day, based solely on the investigative alert. Upon his arrest,

petitioner made statements to police and was identified in lineups by both Royal and Williams. At

the conclusion of the hearing, the trial court found that probable cause had existed at the time

petitioner’s arrest and denied his motion to quash and suppress evidence.

¶8 The case proceeded to trial. The evidence showed that on January 6, 2008, Harrington was

found unconscious in the hallway of an apartment building on South Mason Street in Chicago. He

was transported to the hospital with injuries consistent with having been beaten and kicked. He

died as a result of these injuries on March 9, 2008.

¶9 Royal and Williams both testified. Williams testified that he was the building’s janitor and

was working when he heard a noise from the second-floor hallway. He knocked on Royal’s door

to find help. Royal testified that she went to the second floor and saw “someone standing there and

someone lying there,” although all she could see “was his feet.” She identified the man standing

as petitioner, whom she had seen several times in the lobby of the building. She then ran back to

her apartment and did not report the incident until she was arrested on narcotics charges in April

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2008. Williams testified that he went out the back of the building and came around to the front,

where he saw petitioner coming out the front door. He accompanied emergency responders to the

victim, who was laying on his back and bleeding, with his pockets inside out. Both Royal and

Williams testified to identifying petitioner in a lineup as the man they had seen that day.

¶ 10 William Howard testified that he was also charged with first-degree murder involving the

same incident and was testifying pursuant to a plea agreement. He lived in the same apartment

building with petitioner, and the two were friends. On the day at issue, Howard was in the lobby

of the apartment building on South Mason Street when petitioner arrived with Nathan Clark. They

began to talk, and petitioner asked Howard if he wanted “to hit this thing with us?” or do a “stain,”

which Howard explained meant getting some money in some way. Howard declined but agreed to

be a lookout for petitioner and Clark. He then saw them go upstairs and return 30 to 45 minutes

later, running down the stairs and out the door. Howard followed them, and when they stopped, he

saw that petitioner’s knuckles were red, “like he just punched someone.”

¶ 11 Detective Robert Cordero of the Chicago Police Department testified, corroborating much of

Detective Landando’s testimony from the motion to suppress. Briefly, they received the case

following the victim’s death, interviewed Royal and Williams, and went to the apartment building

where they saw blood splatter in the second-floor hallway. After unsuccessfully searching for

petitioner for several days, they issued an investigative alert, and he was arrested the next day. He

was brought to the police station where he was questioned and gave a statement. A video showing

a portion of the conversation between petitioner and the detectives was then allowed into evidence

and played for the jury. Before this occurred, Detective Cordero testified that petitioner had

provided three different versions of events. First, he said that a man named Shannon Carr had

approached him about accompanying him to the second floor of the apartment building, where

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they came upon the victim. Carr then started to “steal on him,” that is, punch him and knock him

to the ground. Petitioner stated he became alarmed, stopped Carr, and ran away. In the second

version of events, petitioner agreed only to be a lookout while Carr performed a “stain,” which he

confirmed meant a robbery, and he did not strike or take any money from the victim. In the third

version of events, petitioner stated that he was the lookout for Carr and Clark, that he saw money

in the victim’s hands once they started beating him, that he grabbed the money totaling $23, and

that all three of them fled the building. On cross-examination, Detective Cordero affirmed that

petitioner consistently maintained that he had never touched the victim and that he had tried to pull

Carr off the victim after Carr started beating him.

¶ 12 In the defense case-in-chief, petitioner presented Howard’s plea agreement for impeachment

purposes and then rested. The jury then returned a verdict finding petitioner guilty of first-degree

murder. At the sentencing hearing, the trial court set forth the sentencing range and stated that

whatever sentence was imposed had to be served at 100% under truth-in-sentencing provisions. It

then stated that it was considering petitioner’s “extreme youth” as relevant to his potential for

rehabilitation. It concluded by stating that a sentence at the statutory minimum of 20 years “would

not be sufficient” and that a 30-year sentence was appropriate “based upon his youth.”

¶ 13 On direct appeal, petitioner argued among other things that the trial court erred in denying

his motion to suppress based on a lack of probable cause. As part of that argument, he asserted that

the investigative alert, which formed the sole basis of his arrest, was not comprised of sufficient

evidence to justify the belief that a law had been broken and that he was the one who broke it. This

court rejected that argument, holding that the “clear and consistent evidence from multiple

sources” was “sufficient to provide probable cause for [petitioner’s] warrantless arrest via the

investigative alert.”

. The Illinois Supreme Court denied leave to appeal. People v.

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Walker, No. 119272,

(Ill. Sep. 30, 2015) (Table).

¶ 14 On December 10, 2020, the present petition for postconviction relief was docketed in the

circuit court, in which petitioner raised two claims. First, he asserted that his arrest violated article

I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) because it was based on an

investigative alert rather than on the presentation of sworn facts to a judge. He stated that he was

advancing this claim based upon this court’s opinion in People v. Bass,

,

aff’d in part, vacated in part,

. Second, he asserted that the truth-in-sentencing law

that required him to serve 100% of the 30-year sentence imposed on him as a 17-year-old was

unconstitutional. See 730 ILCS 5/3-6-3(a)(2)(i) (West 2012).

¶ 15 On February 24, 2021, the trial court entered an order finding both claims to be frivolous and

patently without merit. As to the first claim, the trial court found that it failed for three reasons:

(1) Bass was not decided until seven years after petitioner’s conviction in 2012, and prior to Bass

no court had held that warrantless arrets pursuant to investigative alerts were unconstitutional;

(2) any new rule of criminal procedure announced in Bass that warrantless arrests based on

investigative alerts violate the state constitution would not be retroactive to petitioner’s case on

collateral review; and (3) subsequent decisions of the appellate court have held that the reasoning

of Bass was flawed and that the use of investigative alerts does not violate the constitution as long

as there is probable cause. As to his second claim, the trial court reasoned that (1) even though

petitioner was not eligible for parole under truth-in-sentencing provisions, his 30-year sentence

was not an unconstitutional life sentence; (2) the authority on which petitioner primarily relied had

been subsequently vacated (see People v. Othman,

, vacated in part, No.

125580 (Ill. Jan. 9, 2020) (supervisory order)); and (3) the trial court took petitioner’s youth and

its attendant characteristics into account when it imposed his sentence. Accordingly, the trial court

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summarily dismissed petitioner’s petition. This appeal followed.

¶ 16 ANALYSIS

¶ 17 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) provides a three-

stage process for imprisoned individuals to raise constitutional challenges to their convictions or

sentences. People v. Hatter,

. This case involves the first stage, in which the

trial court examines the filed petition to determine whether it “is frivolous or is patently without

merit” and must summarily dismiss a petition it determines to meet this standard. 725 ILCS 5/122-

2.1(a)(2) (West 2020); see People v. Brown,

(2010). A petition should be

summarily dismissed under this standard “only if the petition has no arguable basis either in law

or in fact.” People v. Hodges,

(2009). A petition that lacks an arguable basis

in law or in fact is one “based on an indisputably meritless legal theory or a fanciful factual

allegation.”

. The threshold for a petition to survive summary dismissal is low. Hatter,

. The allegations of the petition, taken as true and liberally construed, must

present the gist of a constitutional claim. Id. ¶ 24. Our review is de novo. Id.

¶ 18 Petitioner’s first argument on appeal is that his postconviction petition presented a claim with

arguable merit that his 2008 arrest pursuant to an investigative alert was unconstitutional, because

the police did not obtain an arrest warrant from a judge despite having more than a week and a

half to do so. He does not dispute that probable cause existed as of the time of his arrest, and this

court has previously held on direct appeal that it did. Walker,

, ¶¶ 29,

34. Rather, he argues that despite probable cause existing, his arrest pursuant to an investigative

alert violated his rights under article I, section 6 of the Illinois Constitution, which provides:

“The people shall have the right to be secure in their persons, houses, papers and other

possessions against unreasonable searches, seizures, invasions of privacy or interceptions

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of communications by eavesdropping devices or other means. No warrant shall issue

without probable cause, supported by affidavit particularly describing the place to be

searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6.

¶ 19 An “investigative alert” is the name of a method used within the Chicago Police Department

to communicate that an individual is wanted for a specific crime if he or she happens to be stopped

by an officer. See Sanders v. Cruz, No. 08 C 3318,

, *3 (N.D. Ill. July 29, 2010).

The record discloses that the type of investigative alert used in petitioner’s case was an

“investigative alert with probable cause.” This constitutes a determination by the police department

that probable cause exists for the individual to be arrested, although the police have neither

obtained a warrant for the individual’s arrest nor presented a sworn affidavit to a magistrate. See

People v. Hyland,

(Salone, J., specially concurring).

¶ 20 As of the date of issuance of this decision, the argument that arrests made pursuant to

investigative alerts are unconstitutional has some support in case law and is therefore not

“indisputably meritless.” In People v. Smith,

, a divided panel

of this court held that a defendant’s arrest pursuant to an investigative alert violated the state

constitution, despite the fact that probable cause existed, where the police did not obtain a warrant

despite having had six months to do so. The Smith majority reasoned that the language of article

I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) contemplates a neutral

magistrate making a finding of probable cause based on facts presented in a sworn “affidavit” and

thereupon issuing a warrant; and arrests based on investigative alerts, in which the police

department makes its own probable cause determination without swearing to facts before a

magistrate, violate that requirement. Smith,

.

¶ 21 The defendant in Smith was convicted of murder and mob action. His sole claim on direct

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appeal was that his motion to suppress should have been granted because his arrest was made

pursuant to an investigative alert, based upon a detective’s determination of probable cause, rather

than on a determination of probable cause made by a neutral magistrate and supported by an

“affidavit.” Id. ¶¶ 48, 52. He did not dispute that probable cause existed for his arrest. Id. ¶ 52.

¶ 22 The Smith majority began its analysis by discussing the reasoning and subsequent procedural

history of Bass,

, which was the first case in which a panel of this court

held that arrests pursuant to investigative alerts violate the state constitution. Smith,

. It acknowledged that the supreme court had vacated the portion of the

appellate court’s decision in Bass that had addressed the constitutionality of investigative alerts,

affirming on different grounds.

¶¶ 62-64 (citing Bass,

). The Smith

majority also acknowledged that other panels of this court had disagreed with the holding of the

appellate court majority in Bass that investigative alerts were unconstitutional. Smith,

(citing People v. Braswell,

; People v. Simmons,

; People v. Thornton,

; People v. Bahena,

). However, the Smith majority stated that it was not bound by those

decisions and thus proceeded to its own analysis. Smith,

.

¶ 23 Upon doing so, the Smith majority recognized that the fourth amendment to the United States

Constitution did not require police to obtain an arrest warrant from a judge.

¶ 68 (citing United

States v. Watson,

(1976)). It reasoned, however, that the language of article I,

section 6 of the Illinois Constitution that “[n]o warrant shall issue without probable cause,

supported by affidavit” (Ill. Const. 1970, art. I, § 6) affords greater protection than the analogous

requirement of the fourth amendment that “no [w]arrants shall issue, but upon probable cause,

supported by [o]ath or affirmation” (U.S. Const., amend. IV). Smith,

,

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¶ 78. It noted that the phrase “supported by affidavit” was first included in the 1870 Constitution

(see Ill. Const. 1870, art. II, § 6), and the delegates to the 1870 Constitutional Convention had

intentionally selected the word “affidavit” and rejected “oath and affirmation.” Smith,

. It went on to reason that several supreme court cases had then “interpreted the

‘affidavit’ language in our state constitution as contemplating the crucial role of a magistrate in

the determination of probable cause necessary to issue a warrant.”

¶ 85 (citing Lippman v.

People,

(1898), and People v. Elias,

(1925)).

¶ 24 The Smith majority found persuasive the case of People v. McGurn,

(1930),

which involved a defendant’s conviction for carrying a concealed revolver that had been

discovered on his person during an arrest later found unlawful by the supreme court. Smith,

. The arrest giving rise to the discovery of the revolver in McGurn

did not occur because the arresting officer believed the defendant had committed or was in the

process of committing any crime; rather, the arresting officer stated he was acting under the orders

of a superior officer to arrest the defendant, despite the absence of any warrant or process of law

for the defendant’s arrest. McGurn,

. The arresting officer referred to this in his

testimony as a “standing order.”

. The Smith majority quoted the supreme court’s

statement in McGurn that, under the state constitution, “ ‘no municipality has authority to clothe

any officer with the autocratic power to order the summary arrest and incarceration of any citizen

without warrant or process of law and thus render the liberty of every one of its citizenry subject

to the arbitrary whim of such officer.’ ” (Emphasis omitted.) Smith,

,

¶ 89 (quoting McGurn,

).

¶ 25 Ultimately, the Smith majority reasoned that an arrest pursuant only to an investigative alert

resembled the kind of arrest that had been held unlawful in McGurn. Id. ¶ 94. It reasoned that in

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the arrest before it, similar to McGurn, the arresting officer had neither observed the defendant

committing a crime nor had knowledge of the crime he had allegedly committed, and the sole basis

of the officer’s decision to arrest the defendant was the investigative alert issued by another

detective. Id. ¶¶ 94-95. The majority also emphasized that in the case before it, six months had

elapsed between the issuance of the investigative alert and the defendant’s arrest, during which

time the police could have sought a warrant but made no attempt to do so. Id. ¶ 96. The majority

suggested that investigative alerts could be permissible for shorter time periods of approximately

24 to 48 hours if probable cause existed to suspect that a subject might commit further crimes or

be a flight risk, but it stated that this was not the situation in the case before it. Id. ¶ 97.

¶ 26 Despite engaging in the above analysis, the majority in Smith concluded that, notwithstanding

the unconstitutionality of the defendant’s arrest, the admission of evidence derived from that arrest

was harmless error, and it affirmed the conviction on that basis. Id. ¶ 101. Justice Coghlan issued

a special concurrence, in which she agreed that the defendant’s conviction should be affirmed but

disagreed that the constitutional issue should have been reached. Id. ¶ 115 (Coghlan, J., specially

concurring). Justice Coghlan found that the arrest of the defendant did not violate the Illinois

constitution because it was supported by probable cause despite the fact that a warrant had not

been obtained. Id. ¶¶ 117-19 (Coghlan, J., specially concurring).

¶ 27 Relying on Smith, which we allowed petitioner to cite as supplemental authority, petitioner

contends that there is clear arguable merit to his claim that his arrest violated the state constitution

simply because it was made pursuant to an investigative alert and not a warrant, regardless of the

existence of probable cause. We agree with petitioner that, in light of the majority’s opinion in

Smith, it cannot be said at this stage that such a constitutional claim is frivolous or patently without

merit. Accordingly, we reverse and remand for second stage postconviction proceedings.

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¶ 28 In doing so, we wish to make several points that may become pertinent as this case proceeds.

This case comes to us for decision at a moment when, due to the majority’s opinion in Smith,

support exists in the case law for the constitutional argument raised by petitioner that requires us

to advance this case for further proceedings. We note, however, that the supreme court has

accepted a petition for leave to appeal in a case in which one of the arguments raised is that the

defendant’s arrest violated the state constitution because it was made pursuant to an investigative

alert and not a warrant. People v. Dossie,

, appeal allowed, No.

127412 (Ill. Sep. 29, 2021). Thus, the decision in Dossie could affect the continued merit of the

constitutional argument made by petitioner here.

¶ 29 Second, we note that one of the bases upon which the trial court summarily dismissed

petitioner’s claim was that the rule from which he sought to benefit is one that would not apply

retroactively to his case on collateral review. See Teague v. Lane,

(1989). However,

the State did not argue for affirmance on this ground, and we decline to consider the applicability

of this principle here in the absence of argument or briefing by the parties.

¶ 30 Finally, the State argues that regardless of the constitutionality of petitioner’s arrest,

suppression of his post-arrest statements to police and lineup identification is unwarranted under

the good-faith exception to the exclusionary rule. The good faith exception to the exclusionary rule

is a judicially created rule providing that evidence obtained in violation of a defendant’s fourth

amendment rights will not be suppressed when police acted with an objectively reasonable good-

faith belief that their conduct was lawful, or when their conduct involved only simple, isolated

negligence. People v. Bonilla,

; see also People v. LeFlore,

. According to the State, the police in this case acted in objectively reasonable good-faith

reliance upon the legal landscape that existed at the time of petitioner’s arrest, which permitted the

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use of investigative alerts supported by probable cause to effectuate an arrest. See LeFlore,

. However, we agree with petitioner’s argument that it would be premature for us

to affirm first-stage summary dismissal on this basis. More information and evidence would be

necessary about the procedures by which investigative alerts are issued and executed, both in

general and in petitioner’s case specifically, before the court could conclude that the good faith

exception to the exclusionary rule applies.

¶ 31 As mentioned above, petitioner’s postconviction petition also included a second claim that

the truth-in-sentencing provisions that required him to serve 100% of the 30-year sentence imposed

on him as a 17-year-old was unconstitutional. However, based on our conclusion that petitioner’s

first claim should be advanced for second stage proceedings, we do not need to separately address

the merits of this second claim. If a postconviction petition is comprised of multiple claims and

one of them survives the summary dismissal stage, the entire petition is docketed for second-stage

proceedings regardless of the merits of the other claims. People v. Romero,

(citing People v. Rivera,

(2001)).

¶ 32 CONCLUSION

¶ 33 For the reasons set forth above, we reverse the trial court’s summary dismissal of petitioner’s

pro se postconviction petition and remand this case for further proceedings under the Post-

Conviction Hearing Act (725 ILCS 5/122-2.1(b) (West 2020)).

¶ 34 Reversed and remanded.

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