FOURTH DIVISION Order filed: November 2, 2023

No. 1-22-1553

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County ) v. ) No. 05 CR 5895 ) JAMELL MURPHY, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Rochford and Justice Martin concurred in the judgment.

ORDER

¶1 Held: We affirmed the trial court’s order denying leave to file a successive postconviction petition under the Post Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)), finding that the claim asserted is barred by the doctrine of res judicata and that the petitioner is unable to make a prima facia showing that he suffered prejudice by failing to raise his claim in his initial postconviction petition. No. 1-22-1553

¶2 The petitioner, Jamell Murphy (hereinafter the Defendant), 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 where he made a prima facie

showing for cause in not challenging the constitutionality of his arrest pursuant to an investigative

alert and a prima facie showing of prejudice because his illegal arrest led to the police obtaining

his confession, which was the only evidence connecting him to the offenses for which he was

convicted. For the reasons which follow, we affirm the order of the circuit court denying the

defendant leave to file a successive postconviction petition under the Act.

¶3 The defendant was arrested and charged with the first-degree murder and armed robbery

of Darryl Floyd. Also arrested and charged were co-defendants Noah Wilson and Melvin Williams.

Prior to trial, the defendant filed a motion to quash his warrantless arrest, arguing a lack of probable

cause to support the arrest. At the hearing on that motion, Chicago police Detective Brian Forberg

testified that he was assigned to investigate the shooting and subsequent death of Floyd. Detective

Forberg testified that he interviewed Williams on August 23 and 24, 2004, and Williams admitted

his involvement in the robbery and shooting of Floyd and implicated the defendant. According to

Detective Forberg, Williams told him that he and Gregory Moss planned to rob Floyd and that he

then called his nephew, Jaquis, and told him that Floyd was at an address on South Campbell Street

and that he had a lot of money. Williams stated that he later called the defendant, also one of his

nephews, who arrived at the Campbell Street address along with two other individuals, including

Wilson. Both the defendant and Wilson had guns. Detective Forberg testified that Williams told

him that he, the defendant, Wilson, and another individual went upstairs at the Campbell Street

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address and discussed robbing Floyd. Williams stated that he left the defendant and Wilson and

went to the basement of the building, shortly after which he heard two gunshots. According to

Williams, he went back upstairs and saw the defendant standing outside a bedroom. Williams

stated that the defendant said: “Unc, don’t worry, I just shot him in the ass.” Detective Forberg

testified that Williams identified the defendant in a photo array. According to Detective Forberg

he also interviewed Moss on that same day and Moss also implicated the defendant in the shooting

of Floyd. Detective Forberg testified that he caused the issuance of an investigative alert for the

arrest of the defendant for murder.

¶4 The parties stipulated that the defendant was arrested on January 28, 2005, at 5137 South

Drexel, Unit K, “[t]hat here was no arrest warrant for him, no search warrant for him, no consent

to search form signed and that as a result of his arrest, the State now has information they plan to

use to prosecute him in this case. The identification and the statement.” The trial court denied the

defendant’s motion to quash his arrest.

¶5 The defendant also filed a separate motion to suppress the inculpatory statement that he

gave after his arrest, arguing that his confession came as the result of psychological coercion after

he had requested an attorney, and before he was read his Miranda rights. Officer Timothy O’Brien,

Detective Timothy McDermott, Officer Thomas Tinsman, Detective Joseph Struck, and Assistant

State’s Attorney Stuart Sergeant denied the defendant’s allegations.

¶6 Officer Schmitz testified that, on January 28, 2005, he was advised that an investigative

alert with probable cause had been issued for the arrest of the defendant for murder and that he

could be found at a townhouse at 5037 S. Drexel, Unit K. Officer Schmitz stated that he and Officer

Tinsman went to the Drexel address. When they arrived, Antoinette Sullivan answered the door.

According to Officer Schmitz, they informed Sullivan that they were looking for the defendant to

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place him under arrest and that the detectives wanted to talk to him. He testified that Sullivan stated

that the individual whom they had just seen run up the stairs was the defendant. Officer Schmitz

stated that they asked Sullivan if they could come in and take the defendant in custody, to which

she said “yes.” After entering, the officers placed the defendant under arrest and transported him

to the second district police station.

¶7 The trial court denied the defendant’s motion to suppress his inculpatory statement. The

trial court found that the defendant gave a “free and voluntary, knowing and intelligent waiver,”

after having been advised of his rights. Having viewed the defendant’s videotaped interview, the

trial court found that there was no indication that the defendant was under the influence of

narcotics, had been forced or threatened in any fashion, or psychologically coerced to give the

statement.

¶8 The defendant and Williams were tried simultaneously by separate juries. The jury found

the defendant guilty of first-degree murder by personally discharging a firearm that proximately

caused the death of Floyd and guilty of armed robbery. The trial court sentenced the defendant to

consecutive prison terms of 25 years for first-degree murder, 25 years for personally discharging

a firearm causing Floyd’s death, and 8 years for armed robbery.

¶9 On direct appeal, the defendant argued that he was not proven guilty beyond a reasonable

doubt and that his separate conviction for armed robbery should be vacated because the jury

returned its verdict on a general verdict form. This court rejected both arguments and affirmed the

defendant’s convictions. See People v. Murphy, No. 1-08-1705 (2010) (unpublished order under

Illinois Supreme Court Rule 23).

¶ 10 On January 3, 2011, the defendant filed a postconviction petition seeking relief under the

Act. The defendant argued that the imposition of the 25-year sentence enhancement based on the

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use of a firearm violated the decision in Appendi v. New Jersey,

(2000), because the

jury returned its verdict on a general verdict form, and that the trial court erred in instructing the

jury on accountability. The trial court summarily dismissed the petition, and the defendant

appealed. The defendant’s appointed counsel filed a motion to withdraw pursuant to Pennsylvania

v. Finley,

(1987), asserting that no issues of merit existed to warrant argument on

appeal. This court granted the motion to withdraw as counsel and affirmed the dismissal of the

defendant’s postconviction petition. See People v. Murphy,

.

¶ 11 On September 27, 2013, the defendant filed a motion for leave to file a successive

postconviction petition pursuant to the Act. In that petition, he asserted that: he had newly

discovered evidence of his actual innocence; his trial counsel rendered ineffective assistance; and

the State knowingly used false evidence at his trial. The trial court denied the defendant leave to

file his successive postconviction petition, and the defendant appealed. This court affirmed the

trial court’s order denying leave to file the successive petition. See People v. Murphy,

.

¶ 12 On June 1, 2015, the defendant filed a petition for relief from judgment pursuant to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)), alleging that the

imposition of the 25-year sentence enhancement was “void” because the State failed to inform him

that it would seek a sentence enhancement in violation of 725 ILCS 5/111-3(c-5) and because the

general verdict form returned by the jury did not contain a separate finding that he personally

discharged a firearm proximately causing Floyd’s death. The State moved to dismiss the petition

which the trial court granted. The defendant appealed. The defendant’s appointed counsel filed a

motion to withdraw pursuant to Pennsylvania v. Finley,

(1987), asserting that no

issues of merit existed to warrant argument on appeal. This court issued a summary order, granting

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the motion to withdraw as counsel and affirming the dismissal of the defendant’s petition. See

People v. Murphy, No. 1-16-0234 (2018) (unpublished order under Illinois Supreme Court Rule

23).

¶ 13 On October 31, 2017, the defendant filed a second motion for leave to file a successive

postconviction petition. In the petition, the defendant asserted that: his trial counsel rendered

ineffective assistance for failing to investigate Floyd’s medical records and reports; his 58-year

sentence was an unconstitutional de facto life sentence under the holding in Miller v. Alabama,

(2012); he received ineffective assistance of trial counsel when counsel “failed to

challenge whether the State met its burden of proof at suppression hearing where petitioner[’s]

arrest and all evidence against him came as a result of an illegal arrest in his home on an

investigative alert (not a warrant);” and “the trial court erred in denying the motion to suppress

where the State never established that the information relied upon was based on facts sufficient to

establish probable cause to make an arrest U.S.C.A. Const. Amend.” The petition also alleged that

“an investigative alert is not a warrant to arrest nor did it give Chicago police probable cause to

enter the petitioner’s home without consent to search and arrest him [at] 1:00 a.m.” The trial court

denied the defendant’s motion to file the successive postconviction petition, and the defendant

appealed. On appeal, the defendant argued that he established both cause and prejudice for not

having raised his sentencing claim sooner as it was based on a new rule of law announced in Miller

and that his 58-year sentence violated both the eighth amendment to the United States Constitution

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

Const. 1970, art I, § 11). The defendant raised no other arguments addressed to the propriety of

the trial court’s order denying him leave to file a successive postconviction petition. See People v.

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Murphy,

. On February 28, 2020, this court affirmed the trial court’s

order denying the defendant’s motion for leave to file the successive petition.

¶ ¶ 24–25.

¶ 14 On February 5, 2020, the defendant filed a third motion for leave to file a successive

postconviction petition seeking relief under the Act, which is the basis of this appeal. In the

petition, the defendant asserted that his appellate counsel on direct appeal was ineffective for

“failing to challenge and raise [the] issue of [his] arrest by [the Chicago Police Department] based

solely off an investigative alert issued by a CPD Supervisor and not off sworn facts to a judge who

issued a warrant.” He based the argument on the decision in People v. Bass,

. He also asserted that, since he was arrested after a warrantless entry into his home, without

probable cause, and based solely on an investigative alert, “he was not afforded equal protection

under the Illinois and U.S. Constitutions where he was tried and convicted using his post-arrest

statement which was illegally obtained in direct violation of his constitutional rights and was the

fruit of the poisonous tree.” The petition also asserted violations of the 5th and 14th amendments

to the United States Constitution (U.S. Const., amends. V, XIV) based upon a newly discovered

photograph and civil complaints against Detectives Struck, McDermott, and O’Brien which

“supports his prior claim that his confession came as a result of mental/physical coercion ***.”

¶ 15 On September 2, 2022, the trial court denied the defendant’s motion for leave to file his

successive postconviction petition. The trial court found that the defendant’s claim addressed to

the constitutionality of arrests based on an investigative alert is barred by the doctrine of res

judicata. Procedural bar aside, the trial court found that the defendant’s claim based on the decision

in Bass lacked merit as the holding in that case had been vacated by the supreme court in People

v. Bass,

. The trial court found that the defendant could not establish prejudice

on his Bass-based claim and could not establish either cause or prejudice for his claim of newly

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discovered evidence supporting his claim that his post-arrest statement was coerced. The trial court

also found that the defendant’s appellate counsel on direct appeal could not be found to be

ineffective for not raising a challenge to the defendant’s arrest based upon the reasoning in Bass,

a decision that was not filed until approximately 8 years after the defendant’s direct appeal was

concluded. This appeal followed.

¶ 16 In urging reversal of the trial court’s order denying him leave to file his successive petition,

the defendant argues that he made a prima facie showing of cause for not challenging the

constitutionality of his arrest pursuant to an investigative alert earlier as the reasoning in Bass and

its progeny, People v. Smith,

, was not available at the time of his earlier

postconviction proceedings, and that he made a prima facie showing of prejudice because his

illegal arrest led to the police obtaining his confession, which was the only evidence connecting

him to the offenses for which he was convicted. The defendant raised no issue in this appeal as to

the propriety of the trial court’s order relating to his claim that a newly discovered photograph and

the civil complaints against Detectives Struck, McDermott, and O’Brien support his prior claim

that his confession came as a result of mental/physical coercion.

¶ 17 The State argues that the defendant’s Bass-based claim that his arrest pursuant to an

investigative alert is unconstitutional is barred by the doctrine of res judicata where he raised the

same issue in his October 31, 2017, motion for leave to file a successive postconviction. The State

also argues that the defendant cannot establish cause for having failed to raise his claim that arrests

based on an investigative alert are unconstitutional in earlier proceedings. The State contends that

concerns over the practice had been raised in People v. Starks,

,

and People v. Highland,

(Salone, J., specially concurring, joined

by Neville, J). The State argues that, although the defendant’s argument had less support in the

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law prior to the decision in Bass, at the time that he filed his direct appeal the argument was

available to him. The State contends that, at most, the decisions in Bass and Smith would have

offered the defendant potentially helpful support for a constitutional argument regarding

investigative alerts which does not equate to cause for leave to file a successive postconviction

petition. See People v. Dorsey,

; People v. English,

.

Finally, the State argues that arrests made on an investigative alert based upon probable cause are

not unconstitutional, and, therefore, the defendant cannot establish prejudice based upon his failure

to raise the issue on direct appeal or earlier postconviction proceedings.

¶ 18 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. All issues decided on direct appeal or in an original postconviction

petition are barred by the doctrine of res judicata, and all issues that could have been raised on

direct appeal or in an original postconviction petition, but were not, are waived (People v. Blair,

(2005)), 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 hearing after counsel is appointed.” People v. Walker,

(citing Robinson,

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

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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,

.

¶ 19 The defendant in this case makes arguments that could have been, but were not, raised in

his direct appeal; namely, that he was arrested without probable cause and that his inculpatory

statement was the product of police coercion. Those issues are waived. See Blair,

.

¶ 20 The defendant acknowledges that, in his October 31, 2017, motion for leave to file a

successive postconviction petition, he asserted, inter alia, that he received ineffective assistance

of trial counsel when counsel “failed to challenge whether the State met its burden of proof at

suppression hearing where petitioner[’s] arrest and all evidence against him came as a result of an

illegal arrest in his home on an investigative alert (not a warrant);” and that “the trial court erred

in denying the motion to suppress where the State never established that the information relied

upon was based on facts sufficient to establish probable cause to make an arrest U.S.C.A. Const.

Amend.” The petition also alleged that “an investigative alert is not a warrant to arrest, nor did it

give Chicago police probable cause to enter the petitioner’s home without consent to search and

arrest him [at] 1:00 a.m.” The trial court denied leave to file that successive petition, and this court

affirmed the denial. Murphy,

, ¶ ¶ 24–25. In the motion to file the

successive postconviction petition which is the subject of this appeal, the defendant asserted that

his appellate counsel on direct appeal was ineffective for “failing to challenge and raise [the] issue

of [his] arrest by [the Chicago Police Department] based solely off an investigative alert issued by

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a CPD Supervisor and not off sworn facts to a judge who issued a warrant.” He argues that that

his October 31, 2017, petition “did not directly raise the constitutionality of using investigative

alert to arrest suspects without a warrant, nor did it address the Illinois Constitution, it is not the

same as the one currently at issue.” He concludes, therefore, that the claim raised in the petition at

issue is not barred by the doctrine of res judicata. We disagree.

¶ 21 Although the defendant’s October 31, 2017, petition was based on a claim of ineffective

assistance of trial counsel and the instant petition is based on an allegation of ineffective assistance

of appellate counsel, both petitions are based on a failure to challenge the defendant’s arrest based

on an investigative alert. The Act is not intended as a device to be used to obtain another hearing

on a claim of the denial of a constitutional right that has already been decided. “This is so, even

though the present petition attempts to change the character of the question previously advanced

and decided, by describing them in different constitutional terms.” People v. Cox,

(1966). Because the trial court’s denial of the defendant’s October 31, 2017, motion for leave to

file a successive postconviction petition claiming that his trial counsel was ineffective for having

failed to challenge his arrest based on an investigative alert was affirmed on appeal, he is barred

by the doctrine of res judicata from relitigating the issue of the propriety of his arrest based on an

investigative alert by couching the claim in terms of ineffective assistance of appellate counsel.

See People v. Emerson,

, 106–07 (1992) (explaining that a postconviction petitioner

cannot avoid the bar of res judicata by simply rephrasing his claim.); see also People v. Fair,

(2000).

¶ 22 The defendant argues that the principles of fundamental fairness allow courts to relax the

effects of the doctrines of res judicata. We believe that the cause-and-prejudice test embodied in

the Act is appropriate for determining whether fundamental fairness requires relaxation of

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procedural bars. See People v. Pitsonbarger,

(2002). “To establish that

fundamental fairness requires that a successive postconviction petition be considered on the merits,

a defendant must show both cause and prejudice with respect to each claim presented.” People v.

Morgan,

(2004).

¶ 23 Even assuming for the purpose of further analysis that the claim asserted in the successive

petition which is the subject of this appeal is distinct from the claim raised in the successive petition

for which leave to file was sought in the defendant’s October 31, 2017, motion and, therefore, not

barred under the doctrine of res judicata, we would still affirm the trial court’s order denying leave

to file, finding that the defendant is unable to satisfy the prejudice requirement for the filing of a

successive postconviction petition.

¶ 24 Relying on the reasoning of the appellate majority in Bass, and the reasoning of the

majority in Bass’ progeny 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.

¶ 25 The defendant acknowledges 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,

. He 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

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facie showing of cause for failing to raise the claim that his arrest was unconstitutional in his initial

postconviction petition.

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

that the defendant failed to make 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 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 that the defendant’s constitutional argument

was available to him “long before Bass was decided.” However, we find 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.

¶ 27 For the same reason that we rejected a similar argument by the State in People v. Wimberly,

2023 IL App (1st) 2200809, ¶¶ 14–15, we reject the argument here. In this case, the defendant

filed his initial postconviction petition on January 1, 2011. That petition was dismissed by the

circuit court in 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 years after the defendant’s initial

postconviction petition was filed and dismissed, neither the decision in Starks nor the decision in

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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.

¶ 28 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). We believe

that the defendant in this case has arguably satisfied that requirement. 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 postconviction petition was filed and decided. Both the reasoning and 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. We conclude, therefore, that the

defendant has arguably made a prima facie showing of 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.

¶ 29 As noted earlier, unless the defendant can show both cause for, and prejudice from, failing

to raise the claim in an earlier petition or makes a colorable claim of actual innocence, he cannot

satisfy the statutory requirement for the filing of a successive postconviction petition. 725 ILCS

5/122-1(f) (West 2020); Robinson,

. 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

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process, he is unable to satisfy the prejudice prong of the test necessary to obtain leave to file a

successive postconviction petition.

¶ 30 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,

. In People v. Braswell,

, the court

declined to follow the holding in Bass, concluding that the case was wrongly decided. The

Braswell court adopted the partial dissent 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.

As the State correctly notes, appellate decisions “both before

and after the vacatur in Bass, uniformly sided with Braswell,

, and upheld

the constitutionality of investigative alerts issued by the CPD.” People v. Erwin,

, ¶ 17 (citing People v. Harris,

; People v. Butler,

; People v. Little,

, ¶¶ 63–64; People v. Simmons,

, ¶¶ 62–64; People v. Bahena,

, ¶¶ 59–64; and

People v. Thornton,

, ¶¶ 45–50). More recently, this court in Wimberly

rejected the holdings in both 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 probable cause. See Wimberly,

. For the reasons which follow, we reaffirm our reasoning and holding in Wimberly.

¶ 31 The supreme court in People v. Holmes,

, noted that both the fourth

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

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

seizures. Id. ¶ 25. The supreme court held 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.

¶ 32 According to the majority in Bass, 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. As we found in

Wimberly,

, this perceived distinction is the underpinning of the

Bass court’s conclusion that the Illinois Constitution, unlike the United States Constitution,

requires, in the ordinary case, a warrant to issue before an arrest can be made and that arrests based

on investigative alerts violate that rule. See Bass,

, ¶ 62. We concluded

that “[t]he 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.’ ” Wimberly,

(quoting Bass,

).

¶ 33 The supreme court in People v. Caballes,

(2006), held that the phrase

“supported by affidavit” in the search and seizure provision of the Illinois Constitution of 1870

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(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, is “virtually synonymous with ‘by Oath of affirmation’ in

the fourth amendment.” Id. at 291. As we concluded in Wimberly,

, “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.”

¶ 34 The majority in Bass recognized that the fourth amendment of United States Constitution

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

Bass,

, ¶ 37. In United States v. Watson,

(1976), 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.

¶ 35 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. We believe, contrary to the holdings in Bass and Smith, that 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.

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¶ 36 In his reply brief, the defendant argues that in his petition which is the subject of this appeal

he expressly alleged that he was arrested without probable cause, distinguishing this case from the

facts present in Wimberly. As noted earlier, however, the defendant did not argue on direct appeal

that his arrest was made without probable cause and, as a consequence, the issue has been waived.

We note further, based upon the testimony of Detective Forberg during the pre-trial motion to

quash the defendant’s arrest, that Williams admitted to his involvement in the robbery and shooting

of Floyd, implicated the defendant, and described in detail the defendant’s involvement, including

the defendant’s statement, “I just shot him in the ass.” Willians’ statement to the police was made

before the issuance of an investigative alert for the arrest of the defendant. 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).

¶ 37 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

probable cause. We conclude that a warrantless arrest made pursuant to an investigative alert does

not violate the Illinois Constitution so long as the alert is supported by probable cause.

¶ 38 In this case, the defendant has waived any argument that his arrest was made without

probable cause by failing to raise the issue on direct appeal. As a consequence, he cannot establish

that he suffered prejudice by having failed to raise a claim that his arrest pursuant to an

investigative alert violated the search and seizure provision of the Illinois Constitution in an earlier

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

to file a successive postconviction petition.

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¶ 39 Affirmed.

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