FOURTH DIVISION Order filed: March 23, 2023

No. 1-22-0809

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 2881 ) DARRELL WIMBERLY, ) Honorable ) William G. Gamboney Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Rochford and Martin concurred in the judgment and opinion.

OPINION

¶1 The defendant, Darrell Wimberly, appeals from an order of the circuit court denying him

leave to file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2020)). He argues that the circuit court erred in denying him leave to

file the successive petition because case law decided after the resolution of his initial petition

created good cause for a successive petition and because evidence used to secure his convictions No. 1-22-0809

was obtained as a result of his unconstitutional arrest, thereby establishing prejudice. For the

reasons that follow, we affirm the circuit court's order.

¶2 On July 31, 2006, Brandon Lofton and Fabienne Marthol were walking on State Street in

Chicago approaching 79th Street when they were robbed at gunpoint. In addition to being robbed,

Marthol was struck in the head with a gun by one of the robbers, and Lofton was shot in the back.

When the police arrived, Marthol gave a description of the gunman to Chicago Police Detective

Luke Connelly.

¶3 On August 20, 2006, Detective Connelly showed Marthol a photo array, but she was unable

to identify any of individuals. The defendant’s picture was not contained in that array. On

September 13, 2006, Detective Connelly showed Marthol a second photo array which contained a

photograph of the defendant. Mathol pointed to the defendant’s picture and said, “He is the one

who shot Brandon; he is the one who hit me in the head; and he is the one who robbed us.” Marthol

told Detective Connelly that she wanted to see the man in person because she “believe this him

but not sure, rather see him in person.” After Marthol identified the defendant, Detective Connelly

began looking for him and issued an investigative alert.

¶4 The defendant was arrested by the Dolton Police Department on an unrelated misdemeanor

charge. Aware of the investigative alert that Detective Connolly had issued, the Dolton police

notified Detective Connelly that the defendant was in their custody and was about to be released.

Detective Connelly went to the Dolton police station and placed the defendant under arrest on

September 28, 2006. On that same day, the defendant was placed in a lineup, and Marthol

positively identified him as the person who robbed her and Lofton, struck her with a gun, and shot

Lofton.

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¶5 The defendant and two codefendants were charged with the armed robbery, aggravated

battery with a firearm, and attempt first degree murder of Lofton and the armed robbery and

aggravated battery of Marthol. The codefendants each pled guilty to one count of armed robbery

and were sentenced to 20 years’ imprisonment. The defendant opted for a jury trial.

¶6 In April 2009, the jury found the defendant guilty of one count of attempted first degree

murder and two counts of armed robbery after evidence showed that he robbed Lofton and Marthol

at gunpoint and then shot Lofton in the back. The trial court sentenced the defendant to consecutive

terms of 50, 15, and 15 years’ imprisonment. This court affirmed the defendant’s convictions and

sentences on direct appeal. See People v. Wimberly, 1-09-1328 (2011) (unpublished order pursuant

to Illinois Supreme Court Rule 23).

¶7 On July 28, 2011, the defendant filed an initial petition for postconviction relief, raising

several claims of ineffective assistance of trial and appellate counsel. The circuit court dismissed

the petition as frivolous and patently without merit, and this court affirmed the dismissal. See

People v. Wimberly,

(unpublished order pursuant to Supreme Court

Rule 23).

¶8 On April 21, 2021, the defendant filed a motion for leave to file a successive postconviction

petition, raising two claims for relief. The defendant asserted that his trial counsel rendered

ineffective assistance and that his 80-year sentence is unconstitutional under the eighth amendment

of the United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970 art 1, § 11). On July 26, 2021, the circuit court denied

the defendant leave to file the successive petition, and this court affirmed that order. See People v.

Wimberly,

.

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¶9 On September 21, 2021, after his April 21, 2021, motion for leave to file a successive

postconviction petition had been denied by the circuit court, the defendant filed a motion to

supplement his successive petition. In the proposed supplement, the defendant asserted that his

arrest pursuant to an investigative alert was unconstitutional and that both his trial counsel and

appellate counsel rendered ineffective assistance by failing to raise the unconstitutionality of his

arrest in the trial court and on direct appeal. The circuit court treated the proposed supplement as

a second motion for leave to file a successive postconviction petition. On April 22, 2022, the circuit

court denied the defendant leave to file the petition, finding that he failed to establish cause for not

having raised the claim that his arrest was unconstitutional in his initial postconviction petition,

and that he suffered no prejudice because his arrest was supported by probable cause. This appeal

followed.

¶ 10 Under the Act, a defendant may raise a claim of a constitutional violation in his trial or in

sentencing. People v. Edwards,

. The Act contemplates the filing of one

postconviction petition. Id. ¶ 2. Claims not raised in an initial postconviction petition are waived

(Id. ¶ 21) unless the defendant can show both cause for, and prejudice from, failing to raise the

claim in the earlier petition or makes a colorable claim of actual innocence (People v. Robinson,

). The Act defines “cause” as “an objective factor that impeded [the

petitioner's] ability to raise a specific claim during his or her initial post-conviction proceedings.”

725 ILCS 5/122-1(f) (West 2020). To establish “prejudice,” a petitioner must demonstrate that the

claim not raised in an initial postconviction proceeding “so infected the trial that the resulting

conviction or sentence violated due process.”

“[A]t this early leave-to-file stage, the petitioner

is not required to make the ‘substantial showing’ that will later be required at a second-stage

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hearing after counsel is appointed.” People v. Walker,

(citing

Robinson,

). Rather, “ ‘leave of court to file a successive postconviction

petition should be denied only where it is clear from a review of the petition and attached

documentation that, as a matter of law, the petitioner cannot set forth a colorable claim ***.’ ”

(quoting People v. Sanders,

). Our review of the circuit court's denial of leave

to file a successive postconviction petition is de novo. Robinson,

.

¶ 11 In this appeal, the defendant has made no argument concerning his claims that his trial and

appellate counsel rendered ineffective assistance by failing to raise the unconstitutionality of his

arrest in the trial court and on direct appeal. Therefore, any assertion of error related to those claims

has been forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Instead, the defendant contests

only the merits of the circuit court’s order as it relates to the claim that his arrest pursuant to an

investigative alert was unconstitutional.

¶ 12 Relying on the reasoning of the majority in People v. Bass,

, aff’d

in part, vacated in part,

, and the reasoning of the majority in Bass’ progeny,

People v. Smith,

, the defendant argues that his warrantless arrest based

on an investigative alert violated the search and seizure clause of the Illinois Constitution (Ill.

Const. 1970 art. I, § 6). He argues that he satisfied the Act’s cause requirement for the filing of a

successive petition because the decisions in Bass and Smith were not issued until well after the

filing and dismissal of his initial postconviction petition. The defendant argues that he suffered

prejudice because the evidence used to obtain his convictions was obtained as a result of his

unconstitutional arrest.

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¶ 13 While acknowledging that the portion of the majority’s decision in Bass which held that

warrantless arrests made pursuant to an investigative alert are unconstitutional was vacated by the

supreme court in People v. Bass,

, the defendant nevertheless argues that the

majority’s decision in Smith, which like the majority’s decision in Bass, held that arrests made

pursuant to an investigative alert violate the Illinois Constitution, supports his argument that he

made a prima facie showing of cause for failing to raise the claim that his arrest was

unconstitutional in his initial postconviction petition.

¶ 14 In support of the circuit court’s order denying the defendant leave to file, the State argues

that the defendant failed to make a prima facie showing of cause for failing to raise the claim in

his initial postconviction petition. The State notes that concerns over the use of investigative alerts

and the constitutionality of their use as a substitute for arrest warrants had been raised in opinions

of this court several years before the majority decision in Bass was filed. The State points to the

decision in People v. Starks,

, wherein this court expressed concern over

the use of investigative alerts in the place of arrest warrants. Id. ¶ 77. The State also references the

special concurring opinion in People v. Hyland,

, wherein Justice Salone

noted that the use of investigative alerts to “sidestep” judicial review gives arrest-warrant power

to the police and constitutes a violation of a suspect’s constitutional rights. Id. ¶ 51 (Salone, J.,

specially concurring, joined by Neville, J.). The State concludes, therefore, that the defendant’s

constitutional argument was available to him “long before Bass was decided.” However, the

State’s reliance on the passages in Starks and Hyland to support its argument that the defendant

cannot establish cause for having failed to raise the claim in an earlier postconviction petition is

misplaced. The issue is not whether the defendant could have made the argument earlier; rather,

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the question is whether an objective factor impeded the defendant’s ability to raise the claim in his

initial post-conviction proceedings. See 725 ILCS 5/122-1(f) (West 2020).

¶ 15 In this case, the defendant filed his initial postconviction petition on July 28, 2011. That

petition was dismissed by the circuit court in September 2011. The court’s decision in Starks was

filed on June 4, 2014, and the decision in Hyland was filed on November 21, 2012. Having been

filed long after the defendant’s initial postconviction petition was filed and dismissed, neither the

decision in Starks nor the decision in Hyland could support an argument that the constitutional

claim raised by the defendant in this case was available to him at the time that he filed his initial

postconviction petition.

¶ 16 The State also argues that the defendant cannot rely upon the decision in Bass as it relates

to the constitutionality of warrantless arrests made pursuant to an investigative alert because that

portion of the Bass decision was vacated by the supreme court. The argument might have some

merit if were not for the fact that the decision in Smith, which has not been vacated, parrots both

the holding and reasoning in Bass.

¶ 17 To satisfy the cause element necessary to obtain leave to file a successive postconviction

petition, a defendant must establish that an objective factor impeded his ability to raise a specific

claim during his initial postconviction proceedings. 725 ILCS 5/122-1(f) (West 2020). The

defendant in this case has satisfied that requirement. Indeed, as the defendant correctly argues,

new decisions can establish cause for raising a claim in a successive postconviction petition. See

People v. Womack,

. And the decisions in Bass and Smith, which

both hold that warrantless arrests made pursuant to an investigative alert violate the search and

seizure clause of the Illinois Constitution, were decided years after the defendant’s initial

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postconviction petition was filed and decided. The reasoning and the holdings of the majorities in

Bass and Smith relating to the unconstitutionality of warrantless arrests made pursuant to an

investigative alert are novel and are not found in any reported decision predating the filing and

dismissal of the defendant’s initial postconviction petition which leads us to conclude that the

defendant has established cause for not having raised a claim that his warrantless arrest made

pursuant to an investigative alert violated the search and seizure clause of the Illinois Constitution

in his initial postconviction petition.

¶ 18 As noted earlier, however, to obtain leave to file a successive postconviction petition on

grounds other than actual innocence, a defendant must establish both cause for and prejudice from

failing to raise the claim in an earlier petition. If a defendant is unable to set forth a colorable claim

that so infected his trial such that the resulting conviction or sentence violated due process, he is

unable to satisfy the prejudice prong of the test necessary to obtain leave to file a successive

postconviction petition.

¶ 19 Relying on the portion of the decision in People v. Braswell,

,

declining to follow the holding in Bass relating to the constitutionality of warrantless arrests made

pursuant to an investigative alert, the State argues that the defendant cannot make a prima facie

showing of prejudice necessary to support a motion to file a successive postconviction petition.

We agree.

¶ 20 In Bass and Smith, both plurality decisions, the majorities held that an arrest made without

a warrant and pursuant to an investigative alert violates the search and seizure clause of the Illinois

Constitution, even in cases where the investigative alert is supported by probable cause. See Bass,

, ¶ 43, aff’d in part, vacated in part,

; Smith, 2022 IL

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App (1st) 190691, ¶¶ 58, 66. In Braswell, the court declined to follow the holding in Bass,

concluding that the case was wrongly decided. See Braswell,

. The

Braswell court adopted the partial dissents in Bass and found that warrantless arrests made

pursuant to an investigative alert supported by probable cause do not run afoul of the search and

seizure clause of the Illinois Constitution. We arrive at the same conclusion.

¶ 21 In People v. Holmes,

, the supreme court noted that both the fourth

amendment to the United States Constitution (U.S. Const., amend IV) and article I, section 6, of

the Illinois Constitution guarantee citizens the right to be free from unreasonable searches and

seizures. Id. ¶ 25. The supreme court went on to hold that “we construe the search and seizure

clause of our state constitution in accordance with the United States Supreme Court’s interpretation

of the fourth amendment unless any of the narrow exceptions to lockstep interpretation apply.” Id

¶ 24.

¶ 22 The majority in Bass found that a “critical difference” exists between the fourth

amendment to the United States Constitution and article I, section 6, of the Illinois Constitution,

justifying a departure from the general proposition that the search and seizure clause of our state

constitution is construed in accordance with the United States Supreme Court’s interpretation of

the fourth amendment. The “critical difference” identified by the majority in Bass is the provision

in the fourth amendment which provides that no warrants for arrest shall issue, “but upon probable

cause, supported by Oath or affirmation” (U.S. Const., amend IV), compared to the Illinois

Constitution which states that “[n]o warrant shall issue without probable cause supported by

affidavit” (Ill. Const. 1970 art. I, § 6). Bass,

, ¶ 3. This perceived

distinction is the underpinning of the Bass court’s conclusion that, unlike the United States

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Constitution, “the Illinois Constitution requires, in the ordinary case, a warrant to issue before an

arrest can be made” and “[a]rrests based on investigative alerts violate that rule.” Bass,

, ¶ 62. The Bass court’s conclusion in that regard appears to be the justification

for its holding that warrantless “arrests based solely on investigative alerts, even those supported

by probable cause, are unconstitutional under the Illinois Constitution.” Bass,

, ¶ 43.

¶ 23 However, the supreme court in People v. Caballes,

(2006), interpreting the

phrase “supported by affidavit” in the search and seizure provision of the Illinois Constitution of

1870 (Ill. Const. 1870, art. II, § 6), a phrase which is identical to the one contained in article I,

section 6, of the Illinois Constitution of 1970, held that the phrase is “virtually synonymous with

‘by Oath of affirmation’ in the fourth amendment.” Id. at 291. We find, therefore, that the

perceived “critical difference” between the fourth amendment to the United States Constitution

and article I, section 6, of the Illinois Constitution which underlies the Bass court’s holding that

arrests based solely on investigative alerts, even those supported by probable cause, are

unconstitutional under the Illinois Constitution is nonexistent and cannot form the basis of an

exception to the general rule that the search and seizure clause of our state constitution is construed

in accordance with the United States Supreme Court’s interpretation of the fourth amendment of

the United States Constitution. We find nothing in the language of our constitution, and the

defendant has pointed to nothing in the reports of the constitutional convention, indicating that

article I, section 6, of the Illinois Constitution was intended to be construed differently than the

fourth amendment to the United States Constitution as it relates to warrantless arrests made with

probable cause.

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¶ 24 As the majority in Bass recognized, the fourth amendment of United States Constitution

allows for warrantless arrests so long as the police have probable cause to arrest the suspect. Bass,

, ¶ 37 (citing United States v. Watson,

(1976)). In

Watson, the Supreme Court held that, in determining whether an arrest passes scrutiny under the

fourth amendment, the necessary inquiry is not whether there was a warrant or whether there was

time to get one, but whether there was probable cause to make the arrest. Watson,

.

¶ 25 In the absence of any exception to the lockstep doctrine, we construe the search and seizure

clause of our state constitution in accordance with the United States Supreme Court’s interpretation

of the fourth amendment on the issues of warrantless arrests. The Braswell court found that the

flaw in the majority’s reasoning in Bass is that arrests must be based on probable cause, not

warrants as suggested in Bass. Braswell,

. We agree and find that

the reasoning of the majority in Smith suffers from the same flaw. In determining whether a

warrantless arrest pursuant to an investigative alert passes scrutiny under article I, section 6, of the

Illinois Constitution, the relevant inquiry is whether the police had probable cause to make the

arrest. Probable cause may be established from the collective knowledge of the police officers

working in concert investigating a crime even if that information is not specifically known by the

officer making the arrest. People v. Buss,

(1999). A warrantless arrest made

pursuant to an investigative alert does not violate the search and seizure clause of the Illinois

Constitution so long as the alert is supported by probable cause.

¶ 26 Based on the foregoing analysis, we reject the holding of the majorities in Bass and Smith

that a warrantless arrest made pursuant to an investigative alert violates the search and seizure

clause of the Illinois Constitution, even in cases where the investigative alert is supported by

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probable cause. See Braswell,

; People v. Simmons,

; People v. Thornton,

, ¶¶ 46–50; People v. Bahema,

, ¶¶ 61–64. Accordingly, we find that, having not alleged that his arrest

was made without probable cause, the defendant failed to set forth a colorable claim predicated

solely on his arrest having been made pursuant to an investigative alert, and as a consequence, he

cannot establish that he suffered prejudice by having failed to raise the claim in an earlier

postconviction petition. Therefore, we affirm the circuit court’s order denying the defendant leave

to file a successive postconviction petition raising a claim that his warrantless arrest pursuant to

an investigative alert violated the search and seizure clause of the Illinois Constitution.

¶ 27 Affirmed.

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People v. Wimberly,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07-CR-2881; the Hon. William G. Gamboney Judge, presiding.

Attorneys James E. Chadd, State Appellate Defender; Douglas R. Hoff, Deputy for Appellate Defender; Christina L. Merriman, Assistant Appellate Appellant: Defender, 203 N. LaSalle Street, 24th Floor Chicago, IL 60601 312.814.5472

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, for Paul E. Wojcicki, Adam C. Motz Appellee: Richard J. Daley Center, Third Floor. Chicago, IL 60602 312.693-5496

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