people of the state of illinois v. cara ringland

No. 3-13-0523

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from an Order ofPlaintiff-Appellant, ) the Circuit Court of the

) Thirteenth Judicial Dist.v. ) LaSalle County, Illinois

)CARA RINGLAND, )

Defendant-Appellee, )__________________________________________ ) Nos. 2012 CF 61

)PEOPLE OF THE STATE OF ILLINOIS, ) 2012 MR 20

Plaintiff-Appellant, ) (Consolidated)v. )

)$3,300.00 in U.S. Currency, )

) Hon. Howard C. Ryan, Jr.v. ) Circuit Judge, Presiding

)CARA RINGLAND, )

Claimant-Appellee. )

APPELLEE’S BRIEF

Stephen M. KomieKomie and AssociatesOne North LaSalle Street; Suite 4200Chicago, Illinois 60602312.263.2800

Attorneys for Cara RinglandDefendant-Appellee/Claimant-Appellee

ORAL ARGUMENT REQUESTED

I .

POINTS AND AUTHORITIES

1. THE TRIAL COURT CORRECTLY HELD THAT SPECIAL LASALLE

COUNTY STATE’S ATTORNEY’S INVESTIGATOR, JEFFREY GAITHER WAS NOT

EMPOWERED TO ACT AS A PEACE OFFICER ON JANUARY 31, 2012, BECAUSE

HIS ILLINOIS LAW ENFORCEMENT TRAINING AND STANDARDS BOARD

“WAIVER” WAS NOT APPROVED UNTIL AT LEAST MARCH 21, 2012. . . 13-22

55 ILCS 5/3-9005 (App. 1-3, infra) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

725 ILCS 210/7.06 (West 2010) (App. 4-5, infra) . . . . . . . . . . . . . . . . . . . . . . . . passim

50 ILCS 705/8.2(a) (App. 6, infra) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.,158 Ill.2d 76, 630 N.E.2d 820 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Robinson, 172 Ill.2d 452, 667 N.E.2d 1305 (1996) . . . . . . . . . . . . . . . . . . . 13

People v. Christopherson, 231 Ill.2d 449, 899 N.E.2d 257(2008) . . . . . . . . . . . . . . . . 13

People v. Shapiro, 283 Ill.App.3d 343, 669 N.E.2d 1200 (4th Dist. 1996) . . . . . . . . . 2-3,

Affirmed 177 Ill.2d 519, 687 N.E.2d 65 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

Fernandez v. California, 134 S.Ct. 1126 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Latona, 184 Ill.2d 260, 703 N.E.2d 901(1998) . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Villarreal, 152 Ill.2d 368, 604 N.E.2d 923 (1992) . . . . . . . . . . . . . . . . . . . . . 15

People v. Robinson, 217 Ill.2d 43, 838 N.E.2d 930 (2005) . . . . . . . . . . . . . . . . . . . . . . 16

People Ex Rel Sherman v. Cryns, 203 Ill.2d 264, 786 N.E.2d 139 (2003) . . . . . . . . . . 16

Fehrenbacher v. Mercer County, 2012 IL App (3d) 110479, 968 N.E.2d 737 . 15-17, 18

Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, 984 N.E.2d 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18-19

Village of Park Forest v. Fagan, 64 Ill.2d 264, 356 N.E.2d 59 (1976) . . . . . . . . . . . . . 19

People v. Brownlee, 186 Ill.2d 501, 511, 713 N.E.2d 556, 562 (1999) . . . . . . . . . . . . 19

People v. Johnson, 237 Ill.2d 81, 927 N.E.2d 1179 (2010) . . . . . . . . . . . . . . . . . . . . . 20

People v. Gabrys, 2013 IL App (3d) 110912, 1 N.E.3d 630 . . . . . . . . . . . . . . . . . . . . 19

People v. Marshall, 242 Ill.2d 285, 950 N.E.2d 668 (2011) . . . . . . . . . . . . . . . . . . 20, 21

People v. Bomar, 405 Ill.App.3d 139, 937 N.E.2d 1173 (3rd Dist. 2010) . . . . . . . . . . . 20

People v. Roberts, 214 Ill.2d 106, 824 N.E.2d 250 (2005) . . . . . . . . . . . . . . . . . . . . . . 19

Toys “R” Us, Inc. vs. Adelman, 215 Ill.App.3d 561, 574 N.E.2d 1328, 1332-33 (3rd Dist. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22

II. BECAUSE THIS COURT CAN AFFIRM THE JUDGMENT BELOW ON ANY

BASIS IN THE RECORD, DEFENDANT CONTENDS THAT GAITHER’S GENDER

PROFILED/MUD FLAP SEIZURE OF DEFENDANT WAS VIOLATIVE OF ARTICLE

I, § 6 OF THE ILLINOIS CONSTITUTION AND/OR THE FOURTH AMENDMENT TO

THE FEDERAL CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-31

Ill. Constitution, Article I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. Constitution, Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

55 ILCS 5/3-9005 (App. 1-3, infra) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

725 ILCS 210/7.06 (West 2010) (App. 4-5, infra) . . . . . . . . . . . . . . . . . . . . . . . . passim

50 ILCS 705/8.2(a) (App. 6, infra) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

People v. Cummings, 2014 Il 115769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25

People v. Johnson, 208 Ill.2d 118, 803 N.E.2d 442 (2003) . . . . . . . . . . . . . . . . . . . . . 23

U.S. v. Griffin, 48 F.3d 1147 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. v. Mask, 330 F.3d 330 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. v. Bautista-Silva, 567 F.3d 1266 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Shapiro,177 Ill.2d 519, 687 N.E.2d 65 (1997) . . . . . . . . . . . . . . . . . . . . . . . 25

Florida v. Bostick, 111 S.Ct. 2382 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

U.S. v. Garcia, 23 F.3d 1331 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

U.S. v. Dice, 200 F.3d 978 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Lomas, 349 Ill.App.3d 462, 812 N.E.2d 39 (5th Dist. 2004) . . . . . . . . . . . . . 26

People v. Thompson, 283 Ill.App.3d 796, 670 N.E.2d 1129 (5th Dist. 1996) . . . . . . . . 26

People v. Spencer, 408 Ill.App.3d 1, 948 N.E.2d 196 (1st Dist. 2011) . . . . . . . . . . 26, 27

1

People v. Miller, 242 Ill.App.3d 423, 611 N.E.2d 11 (4th Dist. 1993) . . . . . . . . . . . . . 27

People v. Powell, 343 Ill.App.3d 699, 798 N.E.2d 1252 (4th Dist. 2003) . . . . . . . 27-28

People v. Won Kyu Lee, 2014 Il App (1st) 130507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. Madison, 121 Ill.2d 195 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. Bridgewater, 235 Ill.2d 85, 918 N.E.2d 553 (2009) . . . . . . . . . . . . . . . . . . . 28

Arizona v. Gant, 556 U.S. 332 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. Cregan, 2014 Il 113600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191 (1948) . . . . . . . . . . . . . . . . . . . . . . 29-30

Missouri v. McNeely, – U.S. – ,133 S.Ct. 1552 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Carrera, 203 Ill.2d 1, 783 N.E.2d 15 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Harrell, 2012 Ill.App. (1st) 103724, 975 N.E.2d 624 . . . . . . . . . . . . . . . . . . 31

People v. Lahr, 147 Ill.2d 379, 589 N.E.2d 539 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 31

Olmstead v. U.S., 277 U.S. 438 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32

II.

ISSUES PRESENTED FOR REVIEW





“WAIVER” WAS NOT APPROVED UNTIL AT LEAST MARCH 21, 2012.

II. BECAUSE THIS COURT CAN AFFIRM THE JUDGMENT BELOW ON ANY

BASIS IN THE RECORD, DEFENDANT CONTENDS THAT GAITHER’S GENDER

PROFILED/MUD FLAP SEIZURE OF DEFENDANT WAS VIOLATIVE OF ARTICLE

I, § 6 OF THE ILLINOIS CONSTITUTION AND/OR THE FOURTH AMENDMENT TO

THE FEDERAL CONSTITUTION.

2

III.

STANDARD OF REVIEW

The standards of review concerning appellee’s answering brief appear at pp. 14-15,

23-24, infra.

IV.

STATEMENT OF FACTS

A. INTRODUCTION. Temporarily bereft of record citations, this appeal does not

involve an array of disputed facts. Rather, record repristination reveals that during the late

morning of January 31, 2012, Cara Ringland (Ringland or defendant) was driving her rented

U-Haul truck on Interstate 80 in LaSalle County. Her journey was interrupted when Jeffrey

Gaither (Gaither), an employee of the LaSalle County State’s Attorney’s Felony

Enforcement Group (SAFE) decided to stop her vehicle because of a purported equipment

violation. But Gaither was actually employed as a Special LaSalle County State’s

Attorneys Investigator, pursuant to 55 ILCS 5/3-9005(b) (West 2010). Gaither activated

his SAFE police vehicle lights and equipment—directing her to pull over and stop because

of [a] mud flap traffic violation. Gaither had “profiled” defendant because she was a young

woman, driving alone, and therefore should not be operating a U-Haul on I-80 in LaSalle

County. The “traffic” stop was a charade; Gaither “hunched” that her U-Haul was laden

with cannabis.

The case below is another example of what Justice Ginsburg noted in Fernandez v.

California, – U.S. – , 134 S.Ct. 1126, 1140 (2014):

“Police, after all, have power no private person enjoys.”

Concerning the “war on drugs,” and our “Bill of Rights,” in People v. Shapiro, 177

Ill.2d 519, 687 N.E.2d 65 (1997), the Court affirmed the suppression of physical evidence

in a drug prosecution, noting:

In affirming the judgments of the lower courts suppressing theevidence and quashing defendants' arrests, we are mindful of the

1

Illinois Supreme Court Chief Justice Garman, while a Fourth District Appellate CourtJustice, wrote the appellate opinion affirming suppression in Sharpiro, 283 Ill.App.3d343, 669 N.E.2d 1200 (1996). 2

Reference to the common law record is designated as “C ___.” The suppressionhearings, arguments of counsel and the trial court’s findings are designated as “Tr. ___.”

3

scourge that drugs represent to American society and the importanceof the so-called “war on drugs” in eradicating this social calamity.However, our Republic has enjoyed a peaceful and prosperoushistory for well over two centuries, not because we have increasedpolice powers to achieve ordered liberty, but because we haverecognized that ordered liberty requires that police powers besubjugated to the Bill of Rights. It is the latter, and not the former,that guarantees those freedoms the rest of the world associates withour Republic.

177 Ill.2d at 531, 687 N.E.2d at 71 (quotation marks in original).1

Within the fabric of the this appeal, defendant maintains that Gaither, not having been

certified by the State of Illinois to act as a Special State’s Attorney’s investigator, lacked

the “power” of a police officer. Accordingly, defendant maintains that the suppression

order below be affirmed.

B. PROCEEDINGS BELOW.

January 16, 2013: On the trial court convened an evidentiary hearing in connection with

defendant antecedent motion to suppress physical evidence. C. 26-29.2 After the trial court

and litigants agreed to the manner of proceeding and exhibits, the defense called its first

suppression witness:

Peru Police Officer Jeremiah Brown (Brown) testified that on January 31, 2012, he was

part of a “ride-along” program; he was being trained concerning drug interdictions by

Gaither, who was employed by the LaSalle County SAFE Unit. Brown did not recall

whether he was in plain clothes or carrying a weapon. Tr. 19-20.

Around the noon hour on 1/31/12 Gaither was driving the SAFE patrol vehicle; Brown

was the passenger and they were “stationary” on I-80 as vehicles passed. Tr. 21. Gaither’s

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police vehicle was facing westbound but they turned and headed east on I-80. Brown and

Gaither had been chatting about Gaither’s previous cases (drug interdictions) and Gaither

was explaining how “untypical” [it was] for a U-Haul vehicle to be traveling eastbound

with only a single female in the U-Haul traveling a long distance. Tr. 22. Gaither

explained that if someone was renting a U-Haul going from “Lowe’s” to drop off a couch

or something like that—that makes sense but it didn’t make sense for someone to load-up

a U-Haul and then have to unload it which was the reason that “it’s common that U-Hauls

have two passengers in it.” As they were traveling close to—or along side the U-

Haul—Gaither was explaining what he looks for ... “or reasons to make—you know,

different things they stop vehicles for.” Tr. 23-24. When they pulled next to defendant’s

U-Haul he checked for the seat belt and to see if there was anyone else in the vehicle. Tr.

23. Brown recalled that he believed defendant’s seat belt was in order, the driver’s eyes

were forward and her hands were on “10 and 2.” Tr. 24. Brown observed no improper

driving. Tr. 24, 25 (emph. added).

Notwithstanding Brown’s failure to observe any improper driving, Gaither stopped

defendant’s U-Haul because of an inadequate mud flap—Gaither’s drug interdiction

specialty was truck enforcement. Tr. 25. Gaither was in control and decided to stop the U-

Haul. Brown did not notice, or mention to Gaither that the U-Haul license plate frame

partially obstructed the license plate. Tr. 26. While they were in the process of stopping

the U-Haul Gaither said the “mud flaps” were probable cause, and that he stopped a semi

the other day with mud flaps. Tr. 28-30. Concerning the obstructed license plate, Brown

was able to “call in” the plate number before exiting Gaither’s SAFE police vehicle. Tr.

27, 41. Brown understood that the U-Haul was stopped based only on the mud flap. Tr. 31.

Immediately upon after stopping the U-Haul Brown called in the “traffic stop,” the U-

Haul Arizona plate number, and I-80 at mile marker 74, 75. Tr. 32-33, 66-67. Following

5

the traffic stop Brown was unable to hear most of the conversation between Gaither and

defendant—he believes he heard her say she was delivering baby equipment to a friend on

the east coast. Brown testified that the conversation between defendant and Gaither (while

she was still in the U-Haul) lasted less than two minutes during which Gaither signaled him

to call out the “Canine.” Tr. 36-37, 44. In advance of defendant’s being told to exit the U-

Haul, Brown had not been told by his dispatcher there was any problem with the vehicle.

Tr. 37. Brown took no photos of the U-Haul and did not take any mud flap measurements.

Tr. 41.

Concerning how long it takes to write a warning ticket—Brown had no familiarity with

the SAFE written warning system but it ordinarily took him 6 or 7 minutes to write a

warning ticket. Tr. 42-43. Brown saw no contraband in the cab of the U-Haul; when

defendant was removed from the U-Haul she was deposited in the front passenger seat in

Gaither’s police vehicle. Tr. 43. According to Brown, the canine [unit] appears at every

SAFE [traffic] stop, and earlier that morning (1/31/12) there had been another traffic stop

and the canine appeared. Tr. 45. Brown and Gaither stopped other vehicles that day and

the “canine was deployed,” but he didn’t recall any [canine] alerts. Tr. 45. The State had

no questions for Officer Brown.

The 1/16/12 suppression hearing continued with the testimony of Jeffrey Gaither

(Gaither). Gaither had been with the Illinois State Police from 1987 to the end of July 2011.

Tr. 48. He began as an investigator with the LaSalle County State’s Attorneys Office, as

part of the SAFE Team, during January 2012. As a LaSalle County States Attorney’s

investigator, with the SAFE Unit, Gaither testified that:

“We were hired to work on interstate I-80 and look for narcotictraffickers and criminals that travel up and down the interstates andhighways in LaSalle County.” “We were to work the interstates andlook for narcotic trafficking ... that we were going to do interdictionwork ... To arrest people who were smuggling narcotics or proceedsfrom narcotics up and down the interstates in Illinois in LaSalle

6

County.”

Tr. 49, 51. Gaither was sworn in as a SAFE employee during January 2012, but did not

send his fingerprints to the State Police in Springfield. Tr. 49-50. Gaither described his

employment as “seasonal,” (from September to March) and he received a pay-raise in

September 2012. Tr. 52. The State’s Attorneys Office furnishes a vehicle with police

emergency equipment to make traffic stops. Tr. 52. Gaither was not sworn in as a LaSalle

County Deputy Sheriff, and did not recall when he was sworn in by the Spring Valley

Police Department—but it was after 1/31/12. Tr. 53.

Concerning Gaither’s seizure of defendant, he testified his SAFE I-80/drug interdiction

hours were usually 8:00 a.m. to 6:00 p.m., and Brown was with him during the events

involving defendant. Gaither described the videos taken from his police vehicle and

described himself as the “decision-maker” (Brown was his “drive-along” on 1/31/12); he

decided to go after defendant’s U-Haul because he observed a single female

driver—alone—and it was not very common to see a single young lady driving alone. Tr.

57. Gaither testified that the video camera and audio came on when the police vehicle

lights were activated. Tr. 61. Gaither testified that when he drove along side the U-Haul

defendant was “locked 10/2 on the wheel—looking straight ahead—we tried to make eye

contact with her—she didn’t look. Her seatbelt was on and “we made a traffic stop.” Tr.

57. Gaither described the reasons for the traffic stop as an Illinois mud flap and obstructed

license plate violations. In connection with mud flaps, he testified, only Illinois State

Troopers are certified to enforce mud flap inspections but under an Illinois statute, any

sworn officer in Illinois can enforce the mud flap violations. Tr. 62-63. During his

testimony Gaither referred to audio transcript Exhibits 1 and 2 and explained that the mud

flap violation furnished probable cause for the traffic stop. Tr. 66. Later, Gaither testified

that there were dual reasons for stopping the U-Haul—the license plate and mud flap

violations. Tr. 70-71, 72-73. In connection with the mud flaps, Gaither made no

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measurements regarding how many inches it was off the ground. Tr. 73, 78-80, 83.

Although neither Gaither nor Brown made any mud flap measurements, Gaither opined that

it [mud flap] “is not suppose to flex over 30 degrees, though, or over 15 inches off the

ground.” Tr. 80. While looking at Exh. 5 (a photo of the U-Haul), Gaither conceded that

the right rear mud flap “does not appear to be more than 12 inches [off the ground].” Tr.

82.

After the U-Haul was stopped Gaither spoke with defendant through the passenger door.

He did not see any contraband in open view and part of his plan was to write a warning

ticket—but “I don’t write a lot of citations.” Tr. 85. Gaither asked defendant for the rental

agreement and her drivers license to verify information for the warning ticket and the police

dispatcher reported no problems with either defendant’s license or the U-Haul. Tr. 84-85.

Gaither directed defendant out of the U-Haul and into the police vehicle so he could

complete the paperwork. At that point he neither saw nor smelled any contraband. Tr. 86-

94. During the several minutes defendant was in the police vehicle, Gaither kept her license

and U-Haul registration; he engaged her in general conversation—but nothing in the audio

transcripts concerned mud flaps or U-Haul registration. Tr. 97, 99. Audio transcripts of

Gaither’s conversations with defendant included his asking about furniture, her friends, and

whether she had packed everything in the U-Haul. Gaither found her answers to be

odd—so he was “investigating a little bit.” Tr. 100-101. Defendant was not free to depart

after the dog alerted. Tr. 102-05. According to Gaither, after the dog alerted he did not

need or seek consent and he never sought a search warrant to search a vehicle. Defendant

explained she had a medical marijuana card and Gaither told her it was useless in Illinois

and secured the key for the locked U-Haul rear compartment from defendant. Tr. 105-113.

After the warrantless/non-consent search of the rear compartment of the U-Haul, boxes

were opened—one at a time—and apparently Brown, Gaither and possibly others were

“high-fiving” each other. Tr. 113-114. After defendant was “cuffed,” part of the audio

8

transcript reflects for the first time communications regarding an obstructed license plate.

Tr. 116. However, Gaither maintained that he was preparing warning tickets for both mud

flap and obstructive license plate violations. Tr. 116-117. Gaither agreed, while looking

at Exh. 20 (a photo of the U-Haul) that the mud flap was not measured with a ruler and he

could see the muffler through the right rear mud flap. Tr. 128.

In connection with whether Gaither received a “waiver” concerning any of the training

requirements from the Illinois Law Enforcement Training and Standards Board (hereafter

ILETSB), Gaither testified that the paperwork was sent to the State’s Attorneys Office and

it was taken care of when he first started. Tr. 119. However, Exhibit 9 is one of the

ILETSB exhibits and Gaither’s waiver was not approved until March 21, 2012—more than

51 days after defendant’s arrest. App. 7. Gaither testified he never looked at it before. Tr.

120. He is then shown Exh. 10 which was the States Attorney’s Investigator’s Oath of

Office dated 12/12/12. And another document, Exh. 11 which is an oath of office Gaither

signed on 1/21/12. Tr. 121. He was then asked about Exh. 12 which was a “fax” from the

States Attorney’s office to the ILETSB providing information concerning his background

in order to secure investigator-authorization as of 3/14/12. Tr. 121. App. 8. Gaither was

asked if he was aware that on 1/31/[12] he had not been approved by ILETSB—and his

answer was: “No, Sir.” Tr. 121. Gaither then looks at Exh. 13 which was attached to Exh.

12 and sent to ILETSB, and Gaither testified he didn’t submit that but then agreed “I did

this, yes.” Tr. 122.

While reviewing Exh. 14, a request from ILETSB dated 3/2/12, Gaither seemed

flummoxed, eventually testifying that the State’s Attorney’s Office “[What] they had told

me that I was approved, but they needed more information to finalize something.” Tr. 124.

App. 9. After looking at additional exhibits (Exh. 15, 16, 17 and 18), Gaither agrees that

his Illinois State Police records were transmitted on February 7—after defendant was

arrested. Tr. 124. It was Gaither’s understanding that everything he was doing was legal

9

and the paperwork finalization was a formality, “I guess.” Tr. 126-127. Gaither testified

that his LaSalle County State’s Attorney’s Special Investigator duties did not include

serving subpoenas or working on cases where people had already been arrested. Further,

he did no investigation for the grand jury and defendant’s arrest had nothing to do with (1)

serving subpoenas, (2) acting as an investigator for the grand jury, or (3) investigating

already pending cases. Tr. 126.

Under cross-examination Gaither testified he was a member of the Illinois State Police

from 1987 to July 2011 and before he graduated from the [ISP] academy his fingerprints

were taken and maintained by the State Police. Tr. 130. Gaither again testified that there

were dual reasons for stopping the U-Haul, and obstructed rear license plate and inadequate

right rear splash guard. Tr. 130. The mud flap was almost at a 90 degree angle, well over

30 degrees and well off 15 inches off the ground. Tr. 131. Gaither further testified that the

U-Haul is considered a “second division” vehicle and the warning notice issued concerned

both violations. Tr. 132. During the replaying of the traffic stop video Gaither described

the video, explaining there was no audio because he had not activated his police vehicle

lights. Tr. 135. The video notes that when defendant is exiting the U-Haul she was not

handcuffed and then the canine unit appeared and the time noted on the video is five

minutes and 16 seconds. Tr. 138. The video testimony continues and the court is advised

that there is a second video which faces inside the squad car which shows anybody inside

the squad car. Tr. 139. The video discussion between the trial court and counsel goes from

Tr. 139-142. There are one or two original videos which are admitted in evidence at Tr.

144-45. Continued Circuit Court suppression proceedings: February 8. 2013:

Matt Heiden (Heiden), as a K-9/Peru, Illinois police officer, was assigned to work with

SAFE during the morning of 1/31/12. ROP 2/8/13 at Tr. 4-5. Heiden testified that he was

working for the State’s Attorney and heard, via radio, that Gaither made a traffic stop;

explaining that Gaither was an officer for SAFE. On 1/31/12 his duties were to listen to

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“air” traffic and to go to the traffic stop when they made a stop. Heiden explained that his

appearance at traffic stops on I-80 was part of the SAFE plan. Id. at Tr. 6. Thus, every time

there was a traffic stop Heiden and “Tito”, his K-9 companion, would proceed to the traffic

stop.

On 1/31/12 he heard that Gaither made a traffic stop at mile marker 74 on I-80 and he

arrived there probably within a minute after being called. He observed that Gaither had

stopped a U-Haul and, he walked up to Gaither who directed him to conduct a “free-air

sniff.” Tr. 7. When Heiden approached the U-Haul he was able to read the license plate

but paid no attention to the “mud flaps.” Id. at Tr. 8-9. He recalled he had no permission

to search the truck and when he arrived he believed defendant was seated in the passenger

seat of Gaither’s squad car. After making eye-contact with Gaither he and Tito conducted

a “walk around.” Tito alerted to the front steps of the U-Haul cab and stepped back. They

walked around to the front passenger side of the U-Haul cab and Tito “sat down and stared

up at the window.” Heiden gave Gaither a “thumbs up,” indicating Tito alerted on the U-

Haul (the thumbs up was a pre-arranged signal). Id. at Tr. 12. Heiden stayed while the U-

Haul was being searched and may have stood next to the defendant on the side of the road

during the search of the U-Haul. Tr. 12-13.

Under cross, Heiden explained that Tito was a “passive-alert” dog and was trained to

sit down and stare at the closest source of an odor. Id. at Tr. 15.

LaSalle County State’s Attorney Brian Towne (S/A Towne) testified that he was

appointed to his position in 2006, and re-elected in 2008 and 2012. ROP 2/8/13 at Tr. 18.

S/A Towne testified that during the fall of 2011 he conceived an idea regarding the SAFE

Unit—he envisioned experienced drug interdiction officers, with dogs, operating drug

interdiction teams on I-80. Towne testified he was authorized to do that based on the duties

and powers of the State’s Attorneys office, although that authorization does not appear in

§ 5/3-9005. Id. at 18, 24. According to S/A Towne, his SAFE Team was not involved in

11

investigating pending cases, serving summons or subpoenas, and had no per se grand jury

duties. Tr. 24. Towne understood that Gaither had to be approved by the ILETSB; the

waiver was approved in writing on 3/2/12. Tr. 25-27. Towne also testified that Gaither’s

fingerprints were not obtained or maintained by his office and were never sent to ILETSB;

there were no documents disclosing that Gaither’s fingerprints had been received and

cleared by ILETSB or the Illinois State Police. Tr. 28-29. Concerning defendant, her

arrest, processing and prosecution were not part of any ongoing investigation. S/A Towne

conceded that under the Appellate Prosecutor’s Act (725 ILCS 210/7.06) fingerprints must

be submitted for approval for the appointment of an investigator. Tr. 31-32. S/A Towne

acknowledged that there was no written waiver documents concerning Gaither before or

on 3/2/12. Tr. 36-38.

Under cross by the State, Gaither retired from the Illinois State Police during July 2011

and was sworn in as a Special S/A investigator on 1/21/12. Tr. 43-44. (The record filed

with this Court omits Tr. 45-49; defendant includes those missing transcript pages at App.

11-15 in her appendix).

On redirect, S/A Towne testified that every SAFE member was assigned to patrol

Interstate 80 and defendant was not part of any ongoing investigation on 1/31/12; she came

to his attention after her arrest. Tr. 48-49. Regarding the “warning” ticket book that

Gaither obtained, S/A Towne believed it was provided by others and there is no statutory

authority for those “warning” tickets. Tr. 49-50. Following the testimony of S/A Towne

the proofs were closed. Tr. 53.

June 18, 2013- Arguments of counsel and suppression court rulings:

In advance of the June 18, 2013, arguments of counsel, the trial court was in receipt of

defendants opening and reply suppression memoranda (C. 94-136, 149-157, and the State’s

filing in opposition of suppression, C. 139-148).

The Special Prosecutor, appearing for the State during the suppression proceedings,

12

agreed that defendant was arrested after Special Investigator Gaither was appointed, but

after the written waiver was received during March 2012. ROP, 6/18/13 at Tr. 6-7.

However, the State argued that Gaither acted with police powers on 1/31/12 because, as a

part-time Special Investigator, the waiver requirement was within 18-months. Therefore,

Gaither’s waiver was not required until 7/16/13. Tr. 6-7.

Defendant contended that § 5/3-9005(13), the statute required that, for the protection

of the public from unauthorized or uncertified people exercising police powers, there had

to be either complete statutory compliance or a “waiver.” Defendant asserted that the

inclusion of “shall” within § 5/3-9005(13) meant that full compliance or waivers were

mandatory and applicable to defendant’s case. Tr. 8.

The trial court, addressing the arguments presented, discussed the statute [§ 5/3-9005]

and, citing Illinois statutory construction rules, held that the failure of the State to obtain

Gaither’s “waivers” in advance of defendant’s arrest warranted evidence suppression. Tr.

10-14, 19-23-24. The Circuit Court rejected the State’s substantial compliance

importunings. Tr. 14, 21-22. The Circuit Court also rejected the “obstructed” license plate

in connection with the alleged traffic offenses. Tr. 14-15. And concerning Gaither’s

credibility, the Court declined “making a credibility call because I don’t think there’s a need

to make a credibility call,” again holding there was no “obstructed” plate. Tr. 18-19.

Concerning the “mud flap” traffic violation, the court held that: “I think for a probable

cause determination, it’s not guilt beyond a reasonable doubt; it’s whether or not an officer

felt there was a violation of your client [defendant] that occurred.” Tr. 22-23.

Following the trial court’s suppression holding, it invited further communication

concerning anything the Court may have missed:

“Gentlemen, also, if you’ve got something you think I missed, feel free towrite to me and ask me to take a look at something again. That’s fine. Ok?I’m not bull-headed. I’ll be more than happy to listen.”

ROP. 6/18/13 at Tr. 28.

13

Rather than inviting the trial court to reconsider any aspect of its ruling—the State filed

its notice of appeal and certificate of impairment. C. 160, 161. This appeal ensues.

V.

ARGUMENT





“WAIVER” WAS NOT APPROVED UNTIL AT LEAST MARCH 21, 2012.

A. Standard of Review. Questions concerning 55 ILCS 5/3-9005(b) and 50 ILCS

705/8.2 are subject to de novo review. In People v. Robinson, 172 Ill.2d 452, 462, 667

N.E.2d 1305, 1310 (1996) the court explained, inter alia, that the plain meaning of a statute

controls ([The] “court may not depart from the plain meaning of a statute by reading into

it exceptions, limitations or conditions that the legislature did not express.”) (citation

omitted). Further, when the statutory language is clear and unambiguous, it must be given

effect, People v. Christopherson, 231 Ill.2d 449, 454-55, 899 N.E.2d 257, 260 (2008)

(When the statutory language is clear and unambiguous, it must be given effect without

resort to other tools of interpretation.) (citation omitted). Further, the Illinois Supreme

Court has explained [that] “[t]here is no rule of construction which authorizes a court to

declare that the legislature did not mean what the plain language of the statute imports.”

Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill.2d 76,

83, 630 N.E.2d 820, 823 (1994).

Defendant maintains that § 5/3-9005(b) is clear and unambiguous. The State, driven

3

Importantly, 725 ILCS 210/7.06 of the State’s Attorneys Appellate Prosecutor’s Act

(West Ed. 2011) (a) states: The Director may hire no more than “0" investigators to provideinvestigative services in criminal cases ***. Thus, since the Appellate Prosecutor’s Actfurnishes no statutory authority for the hiring of investigators in criminal cases, the §9005(b) incorporation of the Appellate Prosecutor’s Act furnishes no support for the State’sarguments at bar.

14

by pressures of pragmatic necessity, would have this Court read into the statute exceptions

and limitations which are non-existent, and contrary to Illinois Supreme Court authority.

People v. Robinson, ante, ([The] “court may not depart from the plain meaning of a statute

by reading into it exceptions, limitations or conditions that the legislature did not express.”)

With this prelude, we proceed to further discuss Illinois rules of statutory construction

which resonate within the contours of this appeal.

B. Specific Statutory Provisions Prevail Over General Statutes: Defendant asserts that

§ 5/3-9005(b)—the Act furnishing authority to the several Illinois State’s Attorneys—is the

specific statute informing the case at hand. The Act, 55 ILCS 5/3-9005(b) (West 2012),

mandates conditions precedent concerning the appointment of a Special State’s Attorney

Investigator. Specifically, § 5/3-9005(b) directs that: “A Special Investigator shall not carry

firearms” unless he/she (1)has permission of the State’s Attorney and (2) only while

carrying appropriate identification indicating his employment, and (3) in the of his/her

assigned duties. According to § 9005(b): “subject to the qualifications set forth in this

subsection,” Special Investigators shall be peace officers and “shall” have all the powers

possessed by investigators under the State’s Attorneys Appellate Prosecutor’s Act.3

The Act [§ 9005(b)] then demands that in order to have “peace officer status or exercise

police powers,” the Special Investigator must successfully complete police training courses,

“mandated and approved” by the ILETSB—or such board “waives” those requirements by

reason of prior law enforcement experience or training. Notably, and certainly pertinent to

15

this case, 9005(b) includes: “Before a person is appointed as a Special Investigator, his

fingerprints shall be taken and transmitted to the Department of State Police.” (emph.

added). Both below and within the fabric of this appeal, the State concedes Gaither’s

failure to submit his fingerprints as demanded by § 9005(b). State’s Brief at 13-14, 15.

The State posits that 50 ILCS 705/8.2 jettisons the defendant’s theory below and the

circuit court’s suppression order. The State maintains that because Gaither was designated

as a “part-time” Special Investigator for LaSalle County, he falls within § 705/8.2 (West

2002). The State’s theory in support of suppression reversal is unavailing. Illinois has a

firm legacy of authority revealing that the specific statute controls where there is a putative

conflict between a general-vs-specific enactment. See People v. Latona, 184 Ill.2d 260,

269-270, 703 N.E.2d 901, 906 (Ill.,1998) (It is a fundamental rule of statutory construction

that a specific provision prevails over a general provision Where, as here, a court is faced

with the construction of two statutes whose purview may overlap to some degree, a specific

statutory provision shall control over a general provision on the same subject); People v.

Villarreal, 152 Ill.2d 368, 379, 604 N.E.2d 923, 928 (1992) (It is a fundamental rule of

statutory construction that where there exists a general statutory provision and a specific

statutory provision, either in the same or another act, which both relate to the same subject,

the specific provision controls and should be applied).

Further, for the discerning reader, § 705/8.2(a)’s second paragraph undermines the

State’s arguments for reversal. In part, the second paragraph of § 8.2(a) includes:

The employing agency may seek a waiver from the Board extending theperiod for compliance. A waiver shall be issued only for good and justifiablereasons, and the probationary part-time police officer may not practice asa part-time police officer during the waiver period.

§ 8.2(a) (emph. added).

Hence, the State’s strawman distinctions between §§ 9005(b) and 705/8.2(a) is based

on an embracement of an errant paradigm. In reality, § 705/8.2(a) reveals that during the

“waiver” period, Special State’s Attorney Investigator Gaither was prohibited from acting

16

in a police capacity.

C. “Shall” Means “Shall.”

The State quibbles concerning the “may/shall”—mandatory -vs- directory conundrum.

State’s Brief at pp. 15-16, 17. The State promotes the meritless argument that the

enactments at issue (§§ 5/3-9005(b) or 50 ILCS 705/8.2(a)) fall within “directory,” and

therefore, the LaSalle County State’s Attorney’s apathy or arrogance in failing to comply

with the required “waiver” statutory demands are meaningless. But settled precedent

endlessly explains that: [The] “court may not depart from the plain meaning of a statute by

reading into it exceptions, limitations or conditions that the legislature did not express.”

Defendant maintains that this Court’s suppression-affirmation should be informed by

People v. Robinson, 217 Ill.2d 43, 838 N.E.2d 930 (2005). In Robinson, [now] Chief

Justice Garman explained:

It has long been held that “statutory requisitions” directed togovernment officials “ ‘designed to secure order, system anddispatch in proceedings' ” are usually directory rather thanmandatory, but if they “ ‘are intended for the protection ofthe citizen, * * * and by a disregard of which his rightsmight be and generally would be injuriously affected, theyare not directory but mandatory.’

Robinson, 217 Ill.2d at 44-45, 838 N.E.2d at 937-38 (emph. added; supporting citations

omitted). Thus, based on, inter alia, Robinson, it is pristine that “shall” in § 5/3-9005(b)

is mandatory—as a matter of legislative intent.

Further, had the Illinois General Assembly deemed it appropriate to enumerate §§

5/3-9005(b) or 50 ILCS 705/8.2(a) statutory limitations or explicit exceptions, it clearly

would have done so. For example, in People Ex Rel Sherman v. Cryns, 203 Ill.2d 264, 786

N.E.2d 139 (2003), the Court explained the principle of expressio unius est exclusio

17

alterius, (“the enumeration of exceptions in a statute is construed as an exclusion of all

other exceptions. *** We have previously observed that this rule of statutory construction

“is based on logic and common sense,” as “[i]t expresses the learning of common

experience that when people say one thing they do not mean something else.” “) 786 N.E.2d

154-55 (internal quotation marks in original, supporting authority omitted). By all

accounts, and the State offers nothing to the contrary, the epicenter of the enactments at

issue were (and are) for the purpose of protecting our citizens from police or peace officers

who are disqualified or unqualified from serving, rather than disserving, the public. Absent

dispute, §§ 5/3-9005(b) and 705/8.2(a) were enacted for the purpose of protecting the

public. See Robinson, ante, (“but if they [the statutes] are intended for the protection of the

citizen, *** and by a disregard of which his rights might be and generally would be

injuriously affected, they are not directory but mandatory.”) 217 Ill.2d at 44-45, 838

N.E.2d at 937-38. Notably, the State eschews contending that either enactment was not

enacted for the protection of Illinois citizens.

D. Strict Or Substantial Compliance.

The State, citing Fehrenbacher v. Mercer County, 2012 IL App (3d) 110479, ¶15,

968 N.E.2d 737 and Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶14,

984 N.E.2d 569, maintains that the statutes at issue were the subject of substantial, as

opposed to strict, compliance. Neither of the dual cases cited by the State furnish any

useful parallel to the criminal litigation at hand, although, as noted, infra, Performance

Lighting supports the suppression order below.

In Fehrenbacher, a divided court affirmed an order below which, in turn, affirmed

an administrative proceeding where Fehrenbacher, an erstwhile Mercer County engineer,

was discharged. Fehrenbacher claimed that the administrative removal statute had not been

the subject of compliance although the impleaded statute included “shall” four times. Id.

at ¶15. Justice Lytton, writing for the Fehrenbacher majority, noted that: “However, a

4

On administrative review, the circuit court also noted that Fehrenbacher had waivedhis due process plaints because he did not administratively argue that his notice wasstatutorily deficient. The majority termination affirmation rested its decision onFehrenbacher’s complete participation, with counsel, in the administrative proceeding andhe suffered no prejudice by virtue of the marginally flawed administrative notice. 968N.E.2d at ¶s 17-19

18

mandatory provision does not always require strict compliance. *** Substantial compliance

can satisfy even a mandatory provision.” (citation omitted). Thereafter, the Fehrenbacher

majority held that substantial statutory compliance was sufficient and Fehrenbacher

“suffered no prejudice,” because the administrative notice advised him of the termination

charges, the date of the hearing on the charges, and that he could present evidence at the

hearing. Id. at ¶17. Further, although the notice Fehrenbacher received was not titled

“petition for removal,” it presented the allegations against him, the hearing date, and that

“removal” was a possible hearing outcome. The administrative hearing record revealed that

Fehrenbacher, with counsel, attended the hearing and provided testimony “to refute the

charges against him.” Id. at ¶s 18 & 19. Justice Carter, in dissent, explained that regardless

of whether the [termination statute 605 ILCS 5/5-203] statute and whether there was

substantial or strict compliance, either way, the notice did not specifically inform

Fehrenbacher that Mercer County was seeking “only one remedy—the removal of

Fehrenbacher from office.”4

In Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶14, 984

N.E.2d 569 (State’s Brief at p. 16), the controversy concerned child support payments

withheld from Jennifer Schultz’s ex-husband. Jennifer had filed a complaint against

Performance Lighting, her ex-husband’s employer regarding child support payments that

were or should have been withheld based on the Withholding for Support Act (750 ILCS

28/20(c) (West 2010)). But Jennifer’s complaint failed to include her ex-husband’s social

security number or the termination date of the income-withholding obligations of

Performance Lighting. Id. at ¶s2-4. Because of the deficiencies in Jennifer’s complaint,

5

Concerning strict compliance vel non, Illinois Supreme Court Rules and Statutes are

interpreted in the same fashion, People v. Roberts, 214 Ill.2d 106, 824 N.E.2d 250, 256(2005) (plain language and de novo review). Recently, in People v. Gabrys, 2013 IL App

19

Performance Lighting’s dismissal motion was granted. The trial court held that statutory

“strict compliance” (e.g. ex-husband’s social security number and employment termination

date) was required. While affirming the dismissal below, the Performance Lighting Court

noted that “penal statutes are strictly construed and will not be extended beyond their

terms.” Id. at ¶10 (citation omitted). The Performance Lighting Court also explained that

while “shall” generally indicates a mandatory obligation ... “a mandatory provision does not

always require strict compliance and might be satisfied through substantial compliance.”

Id. at ¶13 (citing Fehrenbacher, ante). The Performance Lighting Court examined decisions

involving substantial vs. strict compliance, and held strict statutory compliance was

demanded, explaining:

In addition, a consideration of the interests at stake alsosuggests that strict, rather than substantial, compliance isnecessary. For example, involuntary-commitment casesprefer to construe “shall” to be mandatory and require strictcompliance in light of the respondent's liberty interest atstake. * * * Here, while there is no liberty interest at stake,the obligor would have a significant portion of his wageswithheld and paid over to plaintiff. Additionally, defendant,as payor, would face rapidly accumulating penalties if itfailed to comply with the Act. These interests are sufficientlyweighty to suggest that “shall” in section 20(c) of the Actshould be construed as mandatory and requiring strictcompliance.

Performance Lighting, 984 N.E.2d at 573, ¶15 (emph. added, citation omitted). Cf. Village

of Park Forest v. Fagan, 64 Ill.2d 264, 268, 356 N.E.2d 59, 62 (1976) (where a disregard

of its provisions would injuriously affect public interests or private rights, it is not directory

but mandatory). (quotation marks omitted, citation omitted).

Defendant asserts that Performance Lighting supports suppression affirmation based

on its holding and analysis concerning “strict compliance.”5 And, it is well-settled that this

(3d) 110912, 1 N.E.3d 630, this Court held that strict compliance was required in connectionwith Rule 604(d) filings. Id. at ¶s 28, 31-32. Defendant suggests that Gabrys serves toconfirm her strict compliance importunings within the fabric of this appeal.

20

Court may affirm the suppression order below on any ground in the record. Cf. People v.

Brownlee, 186 Ill.2d 501, 511, 713 N.E.2d 556, 562 (1999) (It is well established that a

reviewing court may affirm the circuit court’s decision based on any ground in the record)

(citations omitted); People v. Johnson, 237 Ill.2d 81, 89, 927 N.E.2d 1179, 1185 (2010)

(same).

Notably, the State urges suppression reversal by misreading People v. Marshall, 242

Ill.2d 285, 950 N.E.2d 668 (2011) (State’s Brief at 15, 17). The controversy in Marshall

concerned defendant’s challenge to submitting and paying another $200.00 for successive

postconviction DNA samples. On direct appeal, Marshall maintained that he was not

required to furnish another DNA sample or pay the $200.00 fee for collecting DNA already

on file. This Court held, inter alia, that the issue was forfeited on appeal for failing to

challenge the successive DNA order in the circuit court, and, because of the possibility of

an antecedent conviction being reversed his DNA sample could be expunged. People v.

Marshall, 402 Ill.App.3d 1080, 931 N.E.2d 1271, 1273-74 (3rd Dist. 2010). This Court’s

Marshall decision was considered in People v. Bomar, 405 Ill.App.3d 139, 937 N.E.2d 1173

(3rd Dist. 2010). The Bomar majority affirmed the circuit court’s order directing defendant

to submit a successive Illinois State Police DNA sample and pay another $200.00. In

dissent, Justice McDade disagreed with the holding in Marshall and the Bomar majority.

937 N.E.2d at 1184-86.

Justice McDade correctly observed that the Illinois Department of State Police was

the statutorily designated agency concerning DNA registry collection. 937 N.E.2d at 1185-

86. Citing to 20 Ill.Adm.Code, Justice McDade opined that the statute at issue did not

require duplicate DNA samples from an offender with a sample already on file and rejected

Marshall. 937 N.E.2d at 1186.

21

During 2011, the Illinois Supreme Court considered this Court’s Marshall decision.

242 Ill.2d 285, 950 N.E.2d 668. Justice Karmeier, writing for the full court, reversed,

holding, inter alia, that the Illinois State Police was the statutorily designated DNA agency,

and its method for the collection and implementation of the DNA registry was entitled to

substantial weight and deference concerning the administration and enforcement of the

statute. Further, the agency’s interpretation “expresses an informed opinion on legislative

intent, based upon expertise and experience.” Marshall, 242 Ill.2d at 295, 950 N.E.2d at

674-75. The Marshall Court also noted that effective 8/13/09, the DNA statute was

amended, explaining that the statute (730 ILCS 5/5-4-3(l)) also directed that if for any

reason the person’s earlier DNA sample was not adequate “the person “shall” provide

another DNA sample for analysis.” 242 Ill.2d at 301 (emph. added).

In contrast to evolving DNA statutory and Illinois State Police DNA registry

requirements, the impleaded statutes at issue in this case, 55 ILCS 5/3-9005(b) and 50 ILCS

705/8.2(a), have not been the subject of recent amendments. Importantly, the Illinois

Supreme Court Marshall opinion clearly explained that at the discretion of the Illinois State

Police “for any reason” another DNA sample must be provided if the earlier sample is

inadequate. Thus, Marshall bolsters the circuit court’s holding that §9005(b)’s fingerprint

requirements, as a condition precedent for Gaither exercising police powers as a Special

Investigator for the LaSalle County State’s Attorney, was unquestionably appropriate.

Hence, the State’s reliance on Marshall as supportive of suppression vacation remains

unavailing.

Lastly, but certainly significant to the statutory construction issue at hand, defendant

asserts that it is important to note that: (1) §9005(b) is the only legislative enactment

demanding that “fingerprints” be transmitted to the State Police as a condition of

employment (App. 2, infra), while (2) the Appellate Prosecutor’s Act (eff. 8/17/12), for the

first time, statutorily authorizes contracting for investigative services with no “fingerprint”

22

mandate (App. 4), and (3) the Part-time police officers statute, §705/8.2(a) fails to include

any “fingerprint” requirement as a condition of employment. App. 6. Relatedly,

concerning Illinois rules of statutory construction, in Toys “R” Us, Inc. vs. Adelman, 215

Ill.App.3d 561, 574 N.E.2d 1328, 1332-33 (3rd Dist. 1991), this Court, explained:

[That] Judicial construction of a statute is necessary onlywhen the statute is unclear or ambiguous. * * *. This rule isapplied even though the language may be considered unwiseor to cause a serious impairment to the statute as a whole. ** *. Construction and interpretation of a statute is a questionof law for the court and, regardless of the court's opinionregarding the desirability of the results surrounding theoperation of the statute, the court must construe the statuteas it is and may not, under the guise of construction, supplyomissions, remedy defects, annex new provisions, substitutedifferent provisions, add exceptions, limitations, orconditions, or otherwise change the law so as to depart fromthe plain meaning of the language employed in the statute.

Adelman, 215 Ill.App.3d at 568, 574 N.E.2d at 1332-1333 (all supporting citations omitted;

emph.

No need to guild the lily. The facts, blended with settled precedent, wholly supports

affirmation of the suppression order below.

II. BECAUSE THIS COURT CAN AFFIRM THE JUDGMENT BELOW ON

ANY BASIS IN THE RECORD, DEFENDANT CONTENDS THAT GAITHER’S

GENDER PROFILED/MUD FLAP SEIZURE OF DEFENDANT WAS VIOLATIVE OF

ARTICLE I, § 6 OF THE ILLINOIS CONSTITUTION AND/OR THE FOURTH

AMENDMENT TO THE FEDERAL CONSTITUTION.

A. Article I, § 6 of the Illinois Constitution states:

The people shall have the right to be secure in their persons,houses, papers and other possessions against unreasonablesearches, seizures, invasions of privacy or interceptions ofcommunications by eavesdropping devices or other means.No warrant shall issue without probable cause, supported byaffidavit particularly describing the place to be searched andthe persons or things to be seized.

23

The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches andseizures, shall not be violated, and no Warrants shall issue,but upon probable cause, supported by Oath or affirmation,and particularly describing the place to be searched, and thepersons or things to be seized.

B. Standard of Review. Circuit court suppression rulings are reviewed de novo.

Further, this Court can sustain the judgment below regardless of whether the circuit court’s

reasoning was correct. People v. Johnson, 208 Ill.2d 118, 129, 803 N.E.2d 442, 449, 454

(2003) (“[A] reviewing court ‘can sustain the decision of a lower court for any appropriate

reason, regardless of whether the lower court relied on those grounds and regardless of

whether the lower court's reasoning was correct.’ ” * * * . There is no reason why the

appellate court in this case should be precluded from relying upon the rule that a lower

court decision may be affirmed on any ground of record, nor is there any reason why the

appellate court should be required to address only the legal rationale relied upon by the

circuit court. Accordingly, we hold that the appellate court did not exceed its jurisdiction

when it affirmed, on an alternative ground, the order of the circuit court which suppressed

the two statements defendant made to Rickert.). While Ringland’s appellate scriveners

have not unearthed Illinois authority, the Federal Courts of Appeals hold that when

reviewing suppression motions on appeal, the reviewing court construes the facts below in

a light favoring the prevailing party. See U.S. v. Griffin, 48 F.3d 1147, 1150 (10th Cir.

1995) (We view the evidence “in the light most favorable to the party that prevailed

below.”) (quotation marks in original, citations omitted); U.S. v. Mask, 330 F.3d 330, 335

(5th Cir. 2003) (Finally, we view the evidence in the light most favorable to the party below,

appellee Mask) (citations omitted); U.S. v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir.

2009) (Because Bautista-Silva prevailed in the district court, we construe the facts in the

light most favorable to him.) (citation omitted).

C. ARGUMENT AND AUTHORITIES IN SUPPORT OF THE

24

SUPPRESSION ORDER BELOW.

Defendant advances that the seizure of defendant’s U-Haul during the late morning

of January 31, 2012, was “pretextual” and the product of gender profiling. The facts

developed during the circuit court evidentiary hearings included Gaither explaining to his

January 31, 2012, “ride-along” partner, Peru Officer Brown, that it was “untypical” for a

“single female” to be operating a U-Haul because if the “single female” was dropping off

a couch or something like that, it didn’t make sense that she would be alone. Gaither

explained to Brown that he looks for “or reasons to make—you know, different things they

stop vehicles for.” ROP 1/16/13 at Tr. 22-24. Interestingly, Officer Brown failed to

observe any “improper driving.” Id. at 24, 25. Immediately after Gaither stopped

defendant’s I-80 travel, he signaled Brown to call out the “canine,” and Brown had already

called the police dispatcher concerning the U-Haul’s license plate. Tr. 27, 41. While the

“stop” was based on an obscure “mud flap” traffic violation, no measurements or photos

were taken concerning the “mud-flap.” Tr. 41.

Gaither testified (in substance) that he was hired as a Special LaSalle County State’s

Attorney Investigator with the SAFE Team to work on I-80 looking for narcotic trafficking

and to arrest folks suspected of smuggling narcotics or proceeds on I-80 in LaSalle County.

Tr. 49, 51. Gaither decided to curb defendant’s U-Haul because she was: “single female

driver—alone—and it was not very common to see a single young lady driving alone.” Tr.

57. Further, although her seatbelt was on .. when we tried to make eye contact with

her—she didn’t look. Tr. 57. Gaither made no mud flap measurements and conceded that

a U-Haul photo reflected that the right rear mud flap did not appear to be more than 12

inches off the ground. Tr. 80, 82. Gaither engaged defendant in conversation concerning

any number of things after he secured her drivers license and the U-Haul rental

agreement—after the police dispatcher had reported no problems concerning her license and

U-Haul rental agreement. None of Gaither’s conversation with defendant either in her U-

25

Haul or in his SAFE police vehicle concerned any traffic violation, let alone “mud flaps.”

Tr. 97, 99, 100-101.

As recently explained in People v. Cummings, 2014 Il 115769, ¶16, the physical

detention of a citizen may be rendered unreasonable because of “irrelevant” questioning

(“This, however, does not end our analysis because we must consider the possibility, not

that each question is a ‘seizure,’ but that questioning may render the physical detention

unreasonable. *** That is, questioning is not irrelevant in determining whether the

detention has exceeded its lawful duration: “In a garden variety Terry stop, the nature of the

questioning during a later portion of the detention may indicate that the justification for the

original detention no longer supports its continuation. ***”) Cummings, ¶16; (quotation

marks and emphasis in original, citations omitted). Per Cummings, Gaither’s utterly

irrelevant questions directed toward defendant, during her detention clearly supports that

under the guise of traffic enforcement—Gaither’s sole function as a Special LaSalle County

State’s Attorney’s Investigator involved pretext traffic stops on I-80. Tr. 49, 51.

D. War on Drugs: The case at hand represents another Illinois chapter in [the]

war on drugs. In defendant’s “introduction,” ante at pp.4-5, she quoted from the Illinois

Supreme Court decision in People v. Shapiro, 177 Ill.2d 519, 531, 687 N.E.2d 65, 71

(1997). Before and after Shapiro, the United States Supreme Court and federal appellate

courts often observe that the “war on drugs” cannot serve to supplant our constitutional

guarantees. See Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389 (1991) (This

Court, as the dissent correctly observes, is not empowered to suspend constitutional

guarantees so that the Government may more effectively wage a “war on drugs.” See post,

at 2389, 2394–2395. If that war is to be fought, those who fight it must respect the rights

of individuals, whether or not those individuals are suspected of having committed a

crime.); cf., U.S. v. Garcia, 23 F.3d 1331, 1336 (8th Cir. 1994) (The evidence of drug

commerce that the state obtained during the unconstitutional second stop of the appellants'

26

rental truck was tainted by the unlawful seizure. See Wong Sun v. United States, 371 U.S.

471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); * * * . We are not empowered to suspend

constitutional guarantees so that the government can more effectively fight the war on

drugs. Florida v. Bostick, 501 U.S. 429, –––, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389

(1991). As Justice Marshall noted, “it was one of the primary aims of the Fourth

Amendment to protect citizens from the tyranny of being singled out for search and seizure

without particularized suspicion notwithstanding the effectiveness of this method.” Id.

(Marshall, J., dissenting) (emphasis in original) (some citations omitted). Accord: U.S. v.

Dice, 200 F.3d 978, 987 (6th Cir. 2000) (The excessive zeal displayed by the enforcement

officers cannot be countenanced even in the interest of battling our nation's drug woes. As

Lord Atkins declared to his fellow countrymen in World War II, “In England, amidst the

clash of arms, the laws are not silent.” Nor is our Constitution during our nation's “war on

drugs.”) (quotation marks in original text).

In the ensemble, Bostick, Garcia and Dice (and their progeny), stand as stark

reminders to the Government that the “war on drugs . . . * * * [does not] empower] [the

Court] to suspend constitutional guarantees so that the government can more effectively

fight the war on drugs.”

E. Illinois Authority supporting Suppression. Illinois Courts have

consistently declined sanctioning pretext traffic stops, People v. Lomas, 349 Ill.App.3d 462,

812 N.E.2d 39, 43, 46 (5th Dist. 2004) (The officers' subjective intent in a pretextual setting

cannot make otherwise lawful conduct illegal. It cannot invalidate the stop. It is not,

however, totally irrelevant to questions that accompany a pretextual stop. A pretextual stop,

by definition, harbors an underlying ambition to exceed its original scope. Once a traffic

stop's pretextual nature is established, as it was in this case, we know that the true objective

is to find a legal excuse to accomplish a warrantless search. This goal exposes to careful

scrutiny disputes over ensuing events.”) (emphasis in original text; supporting citations

6

In Lomas, Thompson and Spencer, the Appellate Court(s) held for defendant(s) whileconsidering, inter alia, pretext as police-motivation for searching the vehicles in eachcase.

27

omitted); People v. Thompson, 283 Ill.App.3d 796, 670 N.E.2d 1129, 1131 (5th Dist. 1996)

(The validity of a traffic stop does not automatically afford a reasonable basis to fulfill an

underlying ambition to conduct a search. *** Our determination that the initial stop was

valid but pretextual does not resolve the legitimacy of the challenged search. Rather, it

requires our examination of the record to determine the reasonableness of actions taken

after the traffic stop.)) (emph. added, citation omitted); People v. Spencer, 408 Ill.App.3d

1, 948 N.E.2d 196, 202 (1st Dist. 2011) (the search must be conducted in good faith pursuant

to reasonable standardized police procedures and not as a pretext for an investigatory

search) (supporting citations omitted; emph. added).6

The State’s paradigm in the case at hand is simply . . . any excuse for a traffic

stop—not by Illinois State Police —but by the State’s Attorney’s private investigative army

demands affirmation of the suppression order because the LaSalle County State’s

Attorney’s actions in the case at hand cannot be the subject of condonation.

Moreover, Gaither’s pretext methodology has been the subject of comment by

Illinois reviewing courts. As example, in People v. Miller, 242 Ill.App.3d 423, 611 N.E.2d

11 (4th Dist. 1993), the court affirmed suppression of 44 pounds of cannabis following a

traffic stop on Interstate 65. The arresting officer was none other than Illinois State Trooper

Jeff Gaither. In part, the Miller Court affirmed suppression below which was based in large

part on the circuit court having found that Gaither and his fellow Troopers, Heffner, were

less-than-credible. Miller, 611 N.E.2d at 19, 21 (Gaither's and Heffner's persistent

testimony they were both present in the crossover when defendant's loud muffler was heard

was seriously undermined at the reconsideration hearing. The trial judge decided to

disregard all of the officers' testimony regarding the stop of defendant's vehicle. No

28

evidence remained to justify the stop of defendant's vehicle. Absent a lawful stop, defendant

would not have been in a position to voluntarily consent to the search of his vehicle.

Granting the suppression motion was not against the manifest weight of the evidence.) (ital.

emph. added). See also People v. Powell, 343 Ill.App.3d 699, 798 N.E.2d 1252 (4th Dist.

2003) where the court reversed suppression rejection in a Interstate 57 drug-traffic stop

prosecution. The Powell court noted that Master Sgt. Jeff Gaither arrived at the scene of

the stop, spoke with the passenger in defendant’s seized vehicle and happen to see “what

appeared to be cannabis on the floor of defendant’s car.” Powell, 798 N.E.2d at 1254.

Pretext searches were the subject of recent comment in People v. Won Kyu Lee,

2014 IL App (1st) 130507, where the court affirmed an order suppressing evidence below

in a case involving administrative searches. The State maintained that the administrative

searches of defendant’s medical office were the subject of consent based on: (1) defendant’s

express consent, and (2) by virtue of defendant’s contract with Medicare (defendant was

a physician). Pertinent to the case at hand the Won Kyu Lee Court, while affirming the trial

court’s plenary suppression order held that the administrative searches required a search

warrant. Id. at ¶ 29. The Appellate Court, citing People v. Madison, 121 Ill.2d 195 (1988)

held that: “administrative inspections may not be used as a pretext to search for evidence

of criminal violations”—and that if the primary object of the search is to gather evidence

of criminal activity a search warrant must be obtained. Id. at 30. The Won Kyu Lee Court

held [that]: “When all the evidence is considered, the record supports a conclusion that the

audit serves as a pretext for law enforcement to further its criminal investigation.” Id. at

¶35. Defendant advances that the “war on drugs” cannot serve to support the

charade/pretext seizure and warrantless/nonconsent search in this case. The suppression

order below should be affirmed.

F. The Warrantless/Nonconsent Search of Defendant’s Vehicle Supports

the Suppression Judgement Below.

29

During the 1/16/13 suppression hearing, Gaither testified that after the dog alerted,

defendant was arrested (although she was seized several minutes earlier). Concerning

searching defendant’s U-Haul, Gaither avowed that he didn’t need consent and had never

sought a search warrant for the search of a vehicle. Tr. 107-08.

Defendant contends that another reason for affirming the suppression order below

is simply that where the defendant has no access to the vehicle, a search warrant is required

in order to conduct the search of the vehicle. For example, in People v. Bridgewater, 235

Ill.2d 85, 918 N.E.2d 553 (2009) the court affirmed the circuit court suppression order after

a panel of this Court reversed the circuit court suppression order. Bridgewater, 375

Ill.App.3d 414, 873 N.E.2d 45 (2008). The predicate for the Supreme Court reversal

concerned the U.S. Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009).

Justice Kilbride, writing for the Bridgewater majority, held that the warrantless search of

a vehicle incident to a recent arrest is only authorized when “the arrestee is unsecured and

within reaching distance of the passenger compartment at the time of the search.” The

warrantless search is also justified if it is “reasonable to believe that evidence relevant to

the crime of arrest might be found in the vehicle.” Bridgewater, 918 N.E.2d at 558,

“quoting Gant.” In Gant, the offense concerned driving with a suspended license and it was

beyond reason that the search of the Gant vehicle could have reasonably been expected to

find evidence of that crime. Id. at 558 (quoting Gant). Accordingly, the Bridgewater

majority held that the warrantless search of defendant’s vehicle was “per se” unreasonable

under the Fourth Amendment. Bridgewater, 918 N.E.2d at 553. In People v. Cregan, 2014

Il 113600, the Illinois Supreme Court clarified the scope of Arizona v. Gant, holding that:

the decision in Gant thus clarified and limited the search-incident-to-arrest exception as

applied to vehicles. Cregan at ¶ 32.

Defendant maintains that Bridgewater and Cregan served to support the suppression

order below because, by all accounts, defendant was “seized” for a pretend-traffic violation

30

and had no access to the U-Haul after she was directed to remain in Gaither’s police

vehicle.

In McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191 (1948), the Court, speaking

through Justice Douglas, reversed gambling-related convictions where government agents,

acting without a search warrant, seized gambling equipment and charged McDonald and

others with conspiring to engage in unlawful gaming. Following a bench trial, petitioner

and others were convicted. On appeal, petitioner contended that the Fourth Amendment

was the subject of plenary violation by the federal agents who arrested McDonald and

others. Justice Douglas, famously wrote in connection with the zeal of police officers

snooping out crime without bothering to seek search warrants, the following:

The right of privacy was deemed too precious to entrust tothe discretion of those whose job is the detection of crimeand the arrest of criminals. Power is a heady thing; andhistory shows that the police acting on their own cannot betrusted.

McDonald, 335 U.S. at 455-56, 69 S.Ct. at 193 (emph. added).

Recent U.S. Supreme Court precedent embraced, inter alia, the Johnson and

McDonald decisions concerning the overwhelming importance of the Fourth Amendment.

Although almost seven decades have elapsed, Johnson and McDonald were forcefully cited

in connection with warrantless/nonconsensual evidentiary seizures. Cf. Missouri v.

McNeely, – U.S. – ,133 S.Ct. 1552 (2013) (citing Johnson v. U.S. at 1558 and McDonald

at 1561). In McNeely, the Court affirmed the Missouri Supreme Court, which held that the

warrantless/nonconsensual “blood draw” taken from McNeely based on DUI-driving

suspicion was violative of the Fourth Amendment because there were no exigent

circumstances demanding warrantless police actions. The McNeely Court also observed

that [a] “warrantless search is potentially reasonable because there is compelling need for

official action and no time to secure a warrant.” 133 S.Ct. at 1559 (quoting from Michigan

v. Tyler, 436 U.S. 499, 509 (1978)).

31

And as noted, the legacy of U.S. Supreme Court and Illinois precedent clearly

advances the constitutional proposition that: “Power is a heady thing; and history shows

that the police acting on their own cannot be trusted.” The record at hand leaves little to

the imagination concerning Gaither—whose singular approach to law enforcement certainly

“cannot be trusted.” Hence, another arrow in the quiver of affirmation to the suppression

order below.

G. Defendant further maintains that Gaither, having no police powers on

January 31, 2012, but using his unendowed police powers, along with this fully equipped

SAFE police vehicle and the services of “Tito” (the alerting k-9) acted illegally. Defendant

asserts that Gaither lacked the statutorily authorized police power because he had not been

approved as an active peace officer by the ILETSB. Defendant contends that the Illinois

Supreme Court decision in People v. Carrera, 203 Ill.2d 1, 783 N.E.2d 15 (2002) provides

ample precedent for affirmation of the suppression order below. In part, the Carrera

majority, noted:

In rejecting this argument, the court reasoned that the use ofradar guns for monitoring the speed of traffic is limited topolice officers. Therefore, despite the fact that this type ofradar equipment was not strictly limited to police officers, itsuse in this case was an assertion of the officer's policeauthority. *** The court concluded that the evidence shouldbe suppressed since Officer Beyer was not investigating anyparticular individual or suspected crime; there was noevidence except the radar which indicated that Officer Beyerhad reasonable grounds to believe a crime had beencommitted; and Officer Beyer did not effectuate a validcitizen's arrest. ***

Carrera, 783 N.E.2d at 22 (citing People v. Lahr, 147 Ill.2d 379, 589 N.E.2d 539 (1992)).

Cf. People v. Harrell, 2012 Ill.App. (1st) 103724 at ¶65, 975 N.E.2d 624 at ¶65) (citing

Carrera, while holding that settled Illinois precedent applies the exclusionary rule where the

police effectuate an extraterritorial arrest without proper statutory authority).

32

Defendant asservates that Carrera and Harrell further reveal Gaither’s

constitutional infidelity—again supporting the suppression order below.

H. EPILOGUE: In lieu of further tautology, defendant deems it appropriate

to quote the words of Justice Brandeis, in his classic Olmstead v. U.S. dissenting

opinion:

Decency, security, and liberty alike demand that governmentofficials shall be subjected to the same rules of conduct thatare commands to the citizen. In a government of laws,existence of the government will be imperiled if it fails toobserve the law scrupulously. Our government is the potent,the omnipresent teacher. For good or for ill, it teaches thewhole people by its example. Crime is contagious. If thegovernment becomes a lawbreaker, it breeds contempt forlaw; it invites every man to become a law unto himself; itinvites anarchy. To declare that in the administration of thecriminal law the end justifies the means-to declare that thegovernment may commit crimes in order to secure theconviction of a private criminal-would bring terribleretribution. Against that pernicious doctrine this courtshould resolutely set its face.

Olmstead, 277 U.S. 438, 468 (1928) (emph. added).

V

CONCLUSION

Cara Ringland, Defendant-Appellee, respectfully urge that this Court affirm the

order below granting Defendant’s suppression motion.

Respectfully submitted,

By: ____________________________Stephen M. Komie, Attorney forCARA RINGLAND, Defendant-Appellee/Claimant-Appellee

CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b).

The length of this opening brief, excluding the pages containing the Rule 341(d) cover,

the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of

compliance, the certificate of service, and those matters to be appended to the brief

under Rule 342(a), is 32 pages.

_________________________

Stephen M. Komie, Attorney for Cara RinglandDefendant-Appellee/Claimant-Appellee

Dated: June ___, 2014


CERTIFICATE OF SERVICE

Undersigned counsel certifies that he served required copies of Cara Ringland’sAppellee’s Brief upon:

Patrick Delphian, Director Terry A. Meriel Deputy Director Judith Z. Kelly Staff Attorney State’s Attorneys Appellate Prosecutor 628 Columbus Street, Ste 300 Ottawa, Illinois 61350

by forwarding, via prepaid U.S. First Class Mail from 1 North LaSalle Street, Chicago,

Illinois, 60602, the above briefs on the ____ day of June, 2014.

___________________________Stephen M. KomieOne of the Attorneys for Cara RinglandDefendant-Appellee/Claimant-Appellee


CARA RINGLAND, DEFENDANT-APPELLEE/CLAIMANT-APPELLEE

APPENDIX

App. 1-3 — 55 ILCS 5/3-9005 (West 2011)

App. 4-5 — 725 ILCS 210/7.06 (West, 8/17/12)

App. 6 — 50 ILCS 705/8.2 (West 2002)

App. 7 — Gaither Approved Waiver (either March 2 or 21, 2012)

App. 8 — Fax From S/A Towne to Training Board Regarding Gaither (March 14, 2012)

App. 9 — Fax From Training Board to LaSalle County S/A (March 2, 2012)

App. 10 — Training Board Letter to LaSalle County Clerk (1/16/13)

App. 11-15 — Original 2/8/13 ROP Tr. 45-49 (missing from this Court’s 2/8/13 record)

people of the state of illinois v. cara ringland

Documents