People v. Mathis

2024 IL App (1st) 211102-U

• Court: Appellate Court of Illinois
• Decided: August 20, 2024
• Docket: 1-21-1102
• Status: Unpublished

Opinion

2024 IL App (1st) 211102-U

SECOND DIVISION August 20, 2024

No. 1-21-1102

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 JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 7906 ) DEON MATHIS, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County convicting defendant on a theory of accountability for first degree murder and aggravated battery with a firearm is reversed and the cause is remanded for a new trial; the trial court erred in denying defendant’s motion to suppress his statements where defendant’s waiver of his Miranda rights was abated by detectives’ false promise of blanket confidentiality of defendant’s statements, and the error was not harmless beyond a reasonable doubt; for purposes of retrial, defendant’s warrantless arrest was supported by probable cause and did not violate the Illinois constitution.

¶2 In October 2002 a jury found defendant, Deon Mathis, guilty of first degree murder of

one victim and aggravated battery with a firearm of another victim on a theory of accountability

for the actions of his brother, Joseph Mathis. This court affirmed Joseph Mathis’s conviction in a

separate appeal. People v. Joseph Mathis, 2022 IL App (1st) 211027-U. On appeal defendant 1-21-1102

raises several errors including the argument the trial court erred when it failed to suppress certain

statements defendant made after detectives falsely promised him blanket confidentiality.

¶3 For the following reasons, we find the trial court erred when it failed to suppress

statements defendant made after detectives made a promise of blanket confidentiality of anything

defendant said to police. We find this error was not harmless beyond a reasonable doubt. We also

find the properly admitted evidence was sufficient to prove defendant’s guilt of the offense

charged. Accordingly, we reverse defendant’s conviction and remand for a new trial.

¶4 BACKGROUND

¶5 The State’s prosecution of defendant Deon Mathis arises from the shooting death of

Cometra Hollins and the shooting of Kenneth Edwards by defendant’s brother, Joseph Mathis.

We recounted the events surrounding the shooting in Joseph Mathis’s appeal. Id. We begin by

briefly summarizing the facts of the shooting and those additional facts necessary to provide

context for defendant’s appeal.

¶6 At approximately 11:00 a.m. on the morning of December 13, 2011, Hollins and Edwards

were shot while standing on a street corner. At 11:18 a.m. a person identifying himself as Hollins

called 9-1-1 and said that “Joseph” shot him and that he was bleeding. Paramedics transported

Hollins to the hospital where he died later that day. Edwards survived and later identified Joseph

Mathis as the shooter. Police later learned that defendant was involved in the shooting. On

December 26, 2011, another police officer arrested defendant. The officer did not have a warrant

but was aware that defendant was a suspect in the shooting in this case. Detectives interrogated

defendant over the course of almost two days resulting in an inculpatory statement by defendant.

¶7 Defendant filed a motion to quash his arrest and suppress his statements based on the

allegedly illegal arrest without a warrant. The following facts were adduced at the hearing on

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defendant’s motion to quash. On December 15, 2011, following a traffic stop, police arrested

Marvin Jackson for possession of cannabis. Jackson informed the arresting officers that he had

previously witnessed a murder. Two detectives interviewed Jackson that day. One of the

detectives testified that Jackson told the detectives he saw Joseph Mathis in the vicinity of the

shooting on December 13, 2011, and tried to speak to him, but Joseph rebuffed him. Jackson saw

a gray car with “rims” nearby. The detective testified that Jackson told him the car belonged to

defendant, Joseph’s brother.

¶8 After Jackson tried to speak to Joseph, Jackson went to a local store then drove in the

direction of Keeler and Wilcox in Chicago. Jackson saw the same gray car in front of him. The

gray car parked near the intersection of Keeler and Wilcox, and Jackson parked several feet

behind it, where Jackson sat for several minutes. At some point, Jackson saw Hollins in a group

of people approach the intersection. Jackson saw Joseph exit the vehicle, walk toward the

intersection, take out a gun, and start firing. Defendant then drove the vehicle to the intersection

and opened the passenger door. Joseph got in and defendant drove away. That same day Jackson

identified defendant and Joseph as the driver and shooter from photo arrays. The detectives were

also aware that the night before the shooting in this case, defendant and Joseph’s relative had

been killed in the vicinity of this shooting.

¶9 The trial court denied defendant’s motion to quash arrest and suppress statements.

Defendant subsequently filed a separate amended motion to suppress statements on the grounds

defendant did not make a knowing and intelligent waiver of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966), and, regardless, defendant’s statement was involuntary. Defendant

supported both grounds for relief by arguing that police interrogated defendant for over 38 hours

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during which police used coercive tactics, defendant has an IQ below 70, and he has been

diagnosed with schizophrenia.

¶ 10 Two experts offered opinions on defendant and the interrogation at the hearing on

defendant’s motion to suppress. For the defense, Dr. Jean Leska opined defendant was unable to

knowingly waive his Miranda rights. For the State, Dr. Susan Messina opined defendant was

capable of giving a valid waiver of his Miranda rights.

¶ 11 The allegedly coercive tactics police employed included repeated interrogations over two

days; sleep deprivation due to leaving the lights in the interrogation room on; denying

defendant’s request to make a phone call; and a false promise allegedly saying that defendant’s

statements to the detectives would not be shared with anyone else. As to the false promise, after

over 38 hours in custody and being subject to repeated interrogations, detectives told police that

everything defendant said would stay between the three of them. A detective testified they made

that statement in response to defendant’s concern that people in defendant’s neighborhood would

learn defendant gave a statement to police. The detective testified he meant only that no one

from the neighborhood would find out, not that the statements would not be used against

defendant.

¶ 12 The trial court denied defendant’s motion to suppress.

¶ 13 During the voir dire of the jury venire, the trial judge asked the potential jurors whether

they “agree and accept” each of the Zehr principles. See People v. Zehr, 103 Ill. 2d 472 (1984).

The State concedes the trial judge did not ask any potential jurors whether they “understood”

these principles of law.

¶ 14 The trial court tried defendant and Joseph Mathis in simultaneous separate jury trials.

Marvin Jackson testified at defendant’s trial. Jackson generally testified consistently with the

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evidence adduced at the hearing on defendant’s motion to suppress. Specifically, Jackson

testified that when he went to a local drive through convenience store, he saw defendant driving

the gray car with Joseph in the passenger seat. Jackson testified that Joseph usually drove that

car. Jackson also testified that after police arrested defendant and Joseph, Jackson identified

them both in photos and later in physical lineups. On cross-examination, Jackson added that he

had never seen defendant drive before. The gray car was already stopped when Jackson parked

his car, and Jackson could not see the driver’s face. He did not know if anyone got out of the

driver’s seat after the car parked. Jackson did, however, have a clear view of defendant driving

the car when Jackson was at the convenience store.

¶ 15 The trial court admitted video recordings of defendant’s interrogation into evidence. A

detective testified that during defendant’s interrogation defendant was allowed to sleep and use

the washroom and was given food. When not being questioned, defendant laughed at apparently

nothing and sang. During questioning defendant initially denied any involvement or knowledge

of the shooting.

¶ 16 During the relevant portion of defendant’s interrogation that was played for the jury, one

of the detectives begins by telling defendant that defendant properly responded to the killing of

his cousin (defendant “took care of business”). Defendant’s response is unclear. Later, defendant

acknowledged the perception of Joseph’s role in the shooting in this case. Defendant did not

affirmatively agree that Joseph committed the shooting (replying to the detective, “If you say he

did.”), denied knowing what type of gun was used, and did not affirmatively agree that a gun was

even used.

¶ 17 Later, defendant admitted seeing Joseph shoot. The detective told defendant he (the

detective) would have done the same thing (shoot those responsible) in response to his own

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cousin being shot. Defendant then denied going anywhere with Joseph after the shooting or

knowing that Joseph shot anyone. Defendant agreed with the detective that defendant had

“heard” that after defendant’s cousin was killed the person who killed defendant’s cousin was

shot and killed. But defendant denied knowing that Joseph shot the person who killed their

cousin and three other people (saying, “I don’t know about that.”). The detective asserted that

defendant had already told the detective that information, but defendant denied knowledge of it.

¶ 18 The detective asked defendant why defendant could not tell him what happened. The

detective asserted that defendant was afraid of the truth. At this point, the second detective told

defendant, “Whatever, it’s between him, you and me.” The first detective then added, “Listen,

*** nobody else will know what the three of us are talking about. We want to understand the

facts of what happened. We want to know why other people are talking about something that you

did or didn’t do. That’s why we’re trying to get the facts. We know you were there. You seen

what happened, but we want your side of the story.”

¶ 19 The first detective implored defendant to “just answer the question.” The detective told

defendant, “You’re not the one who pulled the trigger, right?” and defendant responded, “No.”

The detective said, “Your brother Joe shot the guy, right?” Defendant responded, “He probably

did pull the trigger.” Later, the detective said, “That’s what he was supposed to do, right? That

was your plan, wasn’t it? To go back and get him right [mentioning defendant’s cousin]? ***

That’s what he’s supposed to do right?” Defendant responded, “He’s supposed to be a man about

it. Own up to the situation.” The detective asked defendant to explain it to him and defendant

responded, “I can’t right now.”

¶ 20 The first detective told defendant he never planned for his cousin to be killed but now

defendant was in this situation and now he had to do something about it. The detective said,

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“You got to do something about it, right?” and defendant could not just let people keep killing

people. Defendant responded, “That’s right.” Then, the detective said they killed his cousin and

later, “You got to do something about it, right?” Defendant responded, “Right.” The detective

said defendant’s brother did something about it, he “manned up” and “he took revenge for your

cousin’s death, right?” Defendant nodded. Then the detective told defendant that defendant was

there and saw it. Defendant initially nodded and seemed to say, “Yes sir,” but then defendant

said, “If you say so.” The detective told defendant that defendant did not pull the trigger, Joseph

did. Defendant did not respond verbally but nodded in response.

¶ 21 The detective asked how defendant and Joseph left the scene and said they were together

and defendant responded, “Yeah.” The detective asked if they had seen “Boo” (a nickname for

the victim) before defendant got to the corner. Defendant gave an unintelligible response and the

detective said, “You just happened to see him?” and defendant nodded in response. The detective

said, “Then your brother got out of the car” and defendant again nodded. The detective said,

“Then your brother walked up to the guy” to which defendant responded, “Something like that.”

The detective asked defendant to tell him and asked if that was “how it all went down” to which

defendant responded, “Yeah.” The detective told defendant that defendant was in the car and

defendant responded that he was. Defendant responded “Yeah” to the detective’s statement that

it was just defendant and Joseph in the car at that time. The detective told defendant “and you

pulled up, you were on Keeler, right? Well you had to see the guy on the corner, right?”

Defendant said, “Right.” The detective said, “Then your brother gets out and tell me what he

does.” Defendant said, “He shot the dude.” The detective said Joseph went back to the car, and

defendant responded, “Yeah,” and the detective asked if defendant drove away and defendant

said, “Yeah.” Defendant said he and Joseph went to Joseph’s house after the shooting. The

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detective asked defendant about his emotions at the time. The detective said, “I would guess that

you were happy that you guys got Boo back, right?” Defendant responded, “Right.” The second

detective said, “ You got revenge for you cousin’s death, you took care of business, you manned

up, right?” Defendant may have responded “You could say the cops could say that.” Defendant

described Joseph’s gun and said that Joseph kept the gun after the shooting.

¶ 22 The detective asked defendant whether he and Joseph were trying to look for “Boo” and

defendant responded, “Something like that.” When the detective said, “You got to tell me,”

defendant responded “Yeah.” The detective asked if they knew the victim hung out on that

corner and defendant responded, “Yeah.” Defendant said that was the spot where he always saw

him (the victim). Defendant said “Yes” to the question of whether he parked on Keeler. The

detectives asked if defendant and Joseph both spotted the victim and defendant said yes. The

detectives said Joseph then got out of the car, walked down the street, and defendant saw Joseph

“shoot these guys;” then defendant pulled up to the corner, Joseph got back in the car, and

defendant drove away. Defendant responded, “Yeah.” Then they went back to one of Joseph’s

residences.

¶ 23 The jury found defendant guilty of first degree murder of Hollins and aggravated battery

of Edwards. After trial, defendant filed a motion for a new trial on the grounds (1) the evidence

was insufficient to convict, (2) the trial court erred in denying defendant’s motion to suppress

because defendant’s warrantless arrest was without probable cause, and (3) the trial court erred

in denying defendant’s motion to suppress his statement. The trial court denied defendant’s

posttrial motion. The court sentenced defendant to 22 years’ imprisonment for first degree

murder and a consecutive term of 8 years’ imprisonment for aggravated battery.

¶ 24 This appeal followed.

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¶ 25 ANALYSIS

¶ 26 Defendant was convicted on the theory of accountability.

“Section 5-2(c) of the Criminal Code of 1961 provides that a person is

legally accountable for the criminal conduct of another if ‘[e]ither before or

during the commission of an offense, and with the intent to promote or facilitate

such commission, he [or she] solicits, aids, abets, agrees or attempts to aid, such

other person in the planning or commission of the offense.’ 720 ILCS 5/5-2(c)

(West 2008).” People v. Fernandez, 2014 IL 115527, ¶ 13.

¶ 27 Defendant raises several issues on appeal:

(1) the evidence is insufficient to prove him guilty beyond a reasonable doubt of the offenses

charged by accountability; specifically that the evidence is insufficient to prove defendant,

“either before or during the commission of [the] offense, and with the intent to promote or

facilitate that commission, *** solicits, aids, abets, agrees, or attempts to aid that other person in

the planning or commission of the offense.” 720 ILCS 5/5-2 (West 2000) (When accountability

exists);

(2) the trial court erred in refusing to suppress defendant’s statement to police because defendant

did not knowingly and intelligently waive his Miranda rights and, regardless, any waiver of his

Miranda rights was not voluntary;

(3) the trial court erred in refusing to suppress defendant’s statement to police because

defendant’s statement was not voluntary;

(4) the trial court erred in refusing to quash defendant’s warrantless arrest and suppress

defendant’s statements because police lacked probable cause for the arrest and the arrest violated

the Illinois constitution where police had time to seek a warrant but did not; and

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(5) the trial court committed plain error when it failed to comply with the requirements of Illinois

Supreme Court Rule 431(b) (eff. July 1, 2012) during voir dire requiring reversal of his

conviction and remand for a new trial.

¶ 28 MOTION TO SUPPRESS STATEMENTS

¶ 29 We first address defendant’s argument the trial court erred in refusing to suppress

defendant’s statement to police because this issue is dispositive of the case. Defendant argues he

did not knowingly and intelligently waive his Miranda rights; any waiver of his Miranda rights

was not voluntary; and, regardless, defendant’s statement was not voluntary because it was

induced by a false promise. We agree with defendant and find defendant’s waiver of his Miranda

rights was not voluntary (or, more specifically, that the voluntariness of his waiver was

overborne), requiring suppression of defendant’s inculpatory statements to police. 1

“Suppression motions generally present ‘mixed questions of law and fact,’

to which we apply [a] bifurcated standard of review ***. [Citations.]

We review the trial court’s findings of ‘historical fact’ under the

deferential manifest-weight standard. [Citations.]

But we review de novo the trial court’s determination regarding the

ultimate ground for suppression raised in the motion.” People v. Leanos, 2023 IL

App (1st) 191079, ¶ 31.

1 Defendant challenged the voluntariness of his statement outside the context of the Miranda rule.

In this context this is most likely a distinction without a difference. See People v. Leanos, 2023 IL App

(1st) 191079, ¶ 62. We specifically hold that the detectives’ interrogation vitiated the voluntariness of

defendant’s waiver of his Miranda rights and, therefore, his statements must be suppressed.

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¶ 30 In pertinent part, defendant argues that he did not knowingly waive his Miranda rights

and his statement to police was not voluntary because police lied to him and told him that

anything he said would stay between them. Defendant argues this was a promise that his

statements would not be used against him and the promise was false because the State introduced

defendant’s statements at trial. Defendant argues “this kind of false promise is impermissible and

renders a statement involuntary.” Defendant asserts he had not made any inculpatory statements

prior to the false promise by police because prior to that false promise, when police made

affirmative statements as to what they believed happened and tried to get defendant to agree,

defendant responded either that he did not know or effectively “If you say so.” “[I]t will be the

State’s burden to show that the Miranda waiver remained effective, notwithstanding the false

promise of confidentiality.” Leanos, 2023 IL App (1st) 191079, ¶ 61.

¶ 31 The State concedes that at the hearing on defendant’s motion to suppress one of the

detectives admitted he told defendant that what defendant said would stay between them.

¶ 32 Prior to the promise of confidentiality being made, defendant placed himself at the scene

of the shooting and stated he saw his brother shoot the victims. However, defendant did not say

he knew his brother was planning to shoot the victims. After the promise of confidentiality was

made by the detectives, defendant agreed he and his brother were looking for the victim and that

he was happy the victim was dead.

¶ 33 The parties disputed the meaning of the promise. The detective claimed that defendant

was concerned that people from defendant’s neighborhood would learn defendant spoke to

police; and the detective only intended his statement to mean that the detective would not tell

people in the neighborhood that defendant made a statement, not that the statement would not be

used against defendant in court. The State argues the detective’s explanation “is that his limited

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promise of keeping defendant’s statement from those in the neighborhood, outside the criminal

process, was not a blanket promise of confidentiality ***.”

¶ 34 Defendant argues the videotaped statement shows that defendant “never said that he was

afraid of anyone in the neighborhood finding out, and the detectives promised that no one would

find out, not that they would not tell people in the neighborhood. The State does not refute that

claim. In its brief to this court, the State admits “A clip of the interview was played where [the

detective] could be heard saying the conversation would stay between defendant and the two

detectives, and during that clip, defendant did not mention being in fear of the neighborhood.”

Nonetheless, the State argues that even if defendant construed the detectives’ statement as a

blanket promise of confidentiality, “suppression is warranted only when, in fact, [the] blanket

promise of confidentiality induced [defendant’s] incriminating statement.” (Internal quotation

marks omitted.) See Leanos, 2023 IL App (1st) 191079, ¶ 55.

¶ 35 The State argues that in this case, “[w]hile defendant made his statement shortly after [the

detectives’ promise,] the record does not show that defendant confessed because of the

detective’s statement.” The State fails to offer any facts in support of that claim and only asserts

in conclusory fashion that the record “demonstrates that *** [defendant’s] statement was not

induced by a promise of confidentiality.” 2 Alternatively, the State argues any error in the

2 The State also asserts in support that defendant understood Miranda. We note, however,

defendant’s Miranda waiver may have been involuntary whether or not defendant initially understood and

validly waived his Miranda rights. “[A] waiver that is initially valid can be vitiated by police conduct

later in the interrogation.” Leanos, 2023 IL App (1st) 191079, ¶¶ 50-51. The State’s arguments do not

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admission of defendant’s statement was harmless beyond a reasonable doubt. In support of its

claim any error was harmless, the State asserts that defendant’s statement did not contribute to

his finding of guilt. The State argues that defendant’s statement was “substantively minimal. ***

Defendant’s statement consisted mostly of responses to the detectives’ questions; while some

were ‘yes,’ most were as vague as, ‘if you say so,’ or even, ‘I can’t tell you if he did.’ “ The State

admits defendant did not provide a narrative of events, “and when asked for details, he got some

wrong.” On the other hand, the State argues, Jackson made a positive and reliable identification

of defendant at the crime scene, and defendant’s “intent to aid his brother can reasonably be

inferred from the surrounding circumstances.”

¶ 36 This court recently addressed an issue of first impression in Illinois: “under what

circumstances, if any, does a promise of confidentiality render a Miranda waiver invalid?”

Leanos, 2023 IL App (1st) 191079, ¶ 37. Similarly to this case, in Leanos, detectives told the

defendant, “ ‘What you tell us is stayin’ in here,’ and ‘What you say here, stays here with us

right now.’ “ Leanos, 2023 IL App (1st) 191079, ¶ 3. The court’s analysis began by

distinguishing a “blanket promise of confidentiality” from “a limited promise that the police will

not disclose the suspect’s statements or identity to particular people outside of the criminal

process.” Id. ¶¶ 38-39. The former represents “an assurance that a suspect’s statements during a

custodial interrogation will be held in confidence by the police for all purposes—most notably

that the suspect’s statement will not be used against him in a criminal proceeding.” Id. ¶ 38. This

court found that:

address whether the voluntariness of defendant’s Miranda waiver, assuming it was voluntary, was

overcome by the detectives’ false promise. Therefore, we find the State’s arguments inapposite.

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“[W]hen a blanket promise of confidentiality induces a statement from a

suspect that is later used against him at his criminal trial *** the police *** turn

the unwitting suspect into a witness against himself by undermining the

procedural safeguards or prophylactic measures that Miranda put in place to

protect the suspect’s fifth amendment right against self-incrimination.” Id. ¶ 40

(citing Miranda, 384 U.S. at 439, Dickerson v. United States, 530 U.S. 428, 450-

51 (2000) (Scalia, J., dissenting, joined by Thomas, J.)).

Stated differently, “a blanket promise of confidentiality blatantly contradicts the second

[Miranda warning:] ‘the explanation that anything said can and will be used against the

individual in court.’ [Citation.]” Id. ¶ 41. “[A]ny evidence that the accused was

threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did

not voluntarily waive his privilege.” Leanos, 2023 IL App (1st) 191079, ¶ 47 (quoting

Miranda, 384 U.S. at 476).

¶ 37 Finally, this court suggested that if an officer even implies a blanket promise of

confidentiality, “the officer should promptly correct the misstatement by telling the suspect that

any incriminating statements he makes can and will be used against him—ideally, by re-

administering a fresh round of Miranda warnings.” Leanos, 2023 IL App (1st) 191079, ¶¶ 60,

83 (“Even telling someone that he is not considered a suspect (as the detectives did here, in so

many words) does not dispel an otherwise reasonable impression, created by police assurances,

that any statements he makes will not put him in legal jeopardy.”). Nonetheless, “suppression is

warranted only when, in fact, a false, blanket promise of confidentiality induced the suspect’s

incriminating statement.” Leanos, 2023 IL App (1st) 191079, ¶ 55.

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¶ 38 The Leanos court rejected the argument, similar to that raised in this case, that the

detective was merely promising that detectives would not let other gang members know the

defendant was speaking to police. This court found:

“the detective’s intentions or subjective meanings are not the point. ‘[T]he state of

mind of the police is irrelevant to the question of the intelligence and

voluntariness of a Miranda waiver, unless that state of mind is made manifest in

words or conduct that affect the suspect’s understanding of his rights. [Citation.]

For purposes of the Miranda rule, ‘[c]oercion is determined from the

perspective of the suspect.’ Illinois v. Perkins, 496 U.S. 292, 296 (1990). ***

Thus, in determining whether a promise of confidentiality was made, ‘our focus is

not on what the detective intended, but rather on what a layperson in [the

defendant’s] position would have understood those words to mean.’ [Citations.]”

Leanos, 2023 IL App (1st) 191079, ¶¶ 66-67.

In other words, we take an objective view of the detective’s words. Id. ¶ 68.

¶ 39 The Leanos court held, and in this case we agree with the conclusion that:

“However these assurances were intended, they could have been

reasonably understood as promises of confidentiality—blanket assurances that

defendant’s statements would be held in confidence by the police and not used

against him in a criminal proceeding. Promises of confidentiality squarely

contradict the Miranda warnings.” (Emphasis added.) Id. ¶ 4.

Ultimately, this court did not suppress the defendant’s statements in Leanos because the

“assurances were far attenuated from [the] defendant’s confession and not remotely responsible

for it.” Id. ¶ 5. That is not true in this case.

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¶ 40 First, the State does not argue, and the recording does not reveal, anything that suggests

detectives did anything to “dispel the impression that defendant’s statements would not be used

against him.” See id. ¶ 88. The context in which defendant confessed was the same context of the

interrogation before the promise was made. That was the detectives attempting to get defendant

to agree to their narrative of how and why the shooting occurred. Because there was no change in

the context of the interrogation, it is more likely the promise induced defendant’s confession.

Compare id. ¶¶ 90-92 (discussing context of interrogation and concluding context changed

(“[t]he interrogation took an accusatorial turn”), and, therefore, finding “no basis for attributing

the confession to a supposedly mistaken belief, induced *** by [the detective’s] assurances”).

¶ 41 Second, “[a] confession is more likely to be induced by a promise of confidentiality when

it follows ‘[i]mmediately after’ ([citations]) the assurance is offered.” Leanos, 2023 IL App (1st)

191079, ¶ 89. This case involves “an incriminating statement made in direct and immediate

response to a promise of confidentiality.” Id. ¶ 57. Defendant made incriminating statements

shortly after the detectives’ false promise. Within minutes of the false promise of blanket

confidentiality defendant admitted those who killed others had to be retaliated against; that

defendant and Joseph were looking for Hollins (Boo), the man who killed their cousin; that

defendant and Joseph saw the man who killed their cousin before Joseph exited the vehicle; that

Joseph shot that man; that defendant assisted Joseph in fleeing the shooting by pulling up where

Joseph re-entered the vehicle; and that defendant was pleased they had killed the person who

killed their cousin. Supra, ¶¶ 15-22. Before the promise was made, defendant had persistently

denied involvement in, or at least knowledge about, the shooting. It is reasonable to conclude

that in this case defendant’s confession was caused by the detectives’ false promise.

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¶ 42 Moreover, the detectives’ statement to defendant was not “limited or qualified” in the

way the State argues (to mean only that the information would not be shared with the

neighborhood). Instead, we find that the statement by the detectives “sounds like [an] unqualified

promise that ‘anything [defendant] said would stay in the interrogation room.’ [Citation.]” See

Leanos, 2023 IL App (1st) 191079, ¶ 70 (and cases cited therein). The detectives were not

responding directly to defendant’s fear that people in his neighborhood would learn defendant

spoke to police; defendant never outwardly expressed such a fear. Compare Leanos, 2023 IL

App (1st) 191079, ¶ 77 (citing United States v. Santacruz, No. 1:21-cr-00304-LMM-JEM-1,

2022 WL 4554420, at *2 (N.E. Ga. Sept. 29, 2022)). In Santacruz, the defendant told officers

“You know what happens when you have too much to say,” so “I just want this to stay here ok

***?” (Internal quotation marks omitted.) Id.

¶ 43 Here, even if detectives subjectively perceived some reluctance by defendant to talk,

there was no overt expression of the alleged fear on which the State relies. Id. ¶ 81. This court

reasoned that the detective

“may have presumed that defendant harbored an unspoken fear of gang retaliation

*** and may have intended his statement to refer only to confidentiality as to

fellow [gang members.] But as we have explained, the detective’s subjective

thoughts and intentions are not relevant, unless he expressed them verbally to

defendant. [Citation.] Unlike in Santacruz, there are no fears or concerns voiced

by defendant, and no other tangible, observable features of the context, that

clearly reveal the assurances to be something other than promises of

confidentiality.” Leanos, 2023 IL App (1st) 191079, ¶ 81.

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¶ 44 Here, as in Leanos, “the assurances offered can reasonably be understood, at least on

their face, as promises of [blanket] confidentiality” in violation of the Miranda rule. Leanos,

2023 IL App (1st) 191079, ¶ 74. Because we find that the false promise of blanket confidentiality

induced defendant’s inculpatory statements, we also find that the State failed to meet its “burden

to show that the Miranda waiver remained effective.” See Leanos, 2023 IL App (1st) 191079, ¶¶

59-61. Therefore, defendant’s statement, after the promise was made, should not have been

admitted. Leanos, 2023 IL App (1st) 191079, ¶ 47 (quoting Miranda, 384 U.S. at 476).

¶ 45 However, “[t]he improper admission of a defendant’s statements is indeed subject to

harmless error review. [Citation.]” People v. Cox, 2023 IL App (1st) 170761, ¶¶ 55-56.

“The critical question under harmless error analysis is ‘whether it appears

beyond a reasonable doubt that the error did not contribute to the verdict.’

[Citations.] The admission of unlawfully obtained confessions is ‘rarely harmless

error.’ [Citation.] ‘[I]n determining whether a constitutional error is harmless

beyond a reasonable doubt, “[t]he focus should *** be upon the character and

quality of the illegally obtained evidence as it relates to the other evidence bearing

on the same issue and the court should appraise the possible impact upon the jury

of the wrongfully obtained evidence.” ’ [Citations.]” Cox, 2023 IL App (1st)

170761, ¶¶ 55-56 (citing People v. R.C., 108 Ill. 2d 349, 355 (1985) (quoting

People v. Black, 52 Ill. 2d 544, 555 (1972))).

¶ 46 Our supreme court has also instructed that, “this court listed three different approaches

for measuring error under this harmless-constitutional-error test: (1) focusing on the error to

determine whether it might have contributed to the conviction, (2) examining the other evidence

in the case to see if overwhelming evidence supports the conviction, and (3) determining whether

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the improperly admitted evidence is merely cumulative or duplicates properly admitted evidence.

[Citations.]” People v. Patterson, 217 Ill. 2d 407, 428 (2005). The State bears the burden to

prove the error was harmless. Id.

¶ 47 Applying the foregoing tests in this case, we cannot say the trial court’s error was

harmless beyond a reasonable doubt. To convict defendant, the State had to prove, and the jury

had to find, that defendant was legally accountable for Joesph’s actions. The Illinois

accountability statute reads as follows:

“A person is legally accountable for the conduct of another when:

***

(c) either before or during the commission of an offense,

and with the intent to promote or facilitate that commission, he or

she solicits, aids, abets, agrees, or attempts to aid that other person

in the planning or commission of the offense.” (Emphasis added.)

720 ILCS 5/5-2 (West 2000).

The statute also provides that “[m]ere presence at the scene of a crime does not render a

person accountable for an offense; a person’s presence at the scene of a crime, however,

may be considered with other circumstances by the trier of fact when determining

accountability.” 720 ILCS 5/5-2 (West 2000).

¶ 48 This court has held that “under the Illinois accountability statute, the State may prove a

defendant’s intent to promote or facilitate an offense by showing either (1) that the defendant

shared the criminal intent of the principal, or (2) that there was a common criminal design.”

People v. Petrov, 2023 IL App (1st) 160498, ¶ 74. “In cases where accountability is premised on

shared intent, the appropriate focus is on what the defendant knew about the principle’s criminal

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intentions, as one cannot share an intent to promote or facilitate the commission of a crime when

one does not know that a crime is going to be committed.” Id. ¶ 75. However, “[u]nlike the

shared-intent theory, under the common-design theory of accountability, the State does not need

to prove that the defendant and the principal shared the same intent concerning the charged

crime. [Citation.] Rather, the State only needs to prove that the defendant had the specific intent

to promote or facilitate a crime.” (Emphasis in original and internal quotation marks omitted.)

People v. Wilson, 2020 IL App (1st) 162430, ¶ 66.

¶ 49 “[A] person generally will not be deemed accountable for acquiescing to the criminal

activities of another.” People v. Taylor, 186 Ill. 2d 439, 446 (1999). Nor is “being an accessory

after the fact *** a crime in Illinois.” People v. Clark, 221 Ill. App. 3d 303, 308 (1991). In

Taylor the defendant was convicted of aggravated discharge of a firearm after his passenger fired

a weapon during a traffic dispute and he drove away from the scene with the shooter. Taylor, 186

Ill. 2d at 443-44. Our supreme court held that the evidence was not sufficient to prove

accountability where the evidence showed the defendant was merely present during a shooting

and then drove the shooter from the scene. Id. at 448. Whether one is an accessory after the fact

is determined by “the point at which the commission of the offense terminated” and when the

defendant obtained knowledge of the offense. See id. A defendant cannot be convicted of any

criminal behavior prior to the time he or she obtained the mental state of knowledge of the

offense. If the offense was completed by the time the defendant obtained knowledge of it, and

the defendant aids or abets the offender thereafter, then the defendant “was merely an accessory

after the fact and could be at most charged with obstruction of justice.” Id. The question is

whether the defendant knowingly aided the primary offender before the offense was completed.

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Id. Finally, “[g]uilt of commission of a crime on the basis of accountability may be established

entirely by circumstantial evidence.” People v. Harris, 96 Ill. App. 3d 970, 974 (1981).

¶ 50 The issue for purposes of the harmless error analysis in this case is whether the

wrongfully admitted evidence contributed to the jury’s determination that defendant was

accountable for Joseph’s actions.

¶ 51 We concede that even without defendant’s confession the State adduced at least

circumstantial evidence of defendant’s accountability. Jackson established defendant’s presence

at the crime and his assisting Joseph to flee the scene. Defendant’s mere presence does not make

him legally accountable. 720 ILCS 5/5-2 (West 2000). However, Jackson’s testimony is

sufficient to establish defendant’s guilt on the basis of accountability (Harris, 96 Ill. App. 3d at

974), but the question here is not the sufficiency of the evidence but rather whether the error was

harmless. See People v. Dennis, 181 Ill. 2d 87, 95 (1998). The harmless error test is

distinguished from the sufficiency of the evidence test. People v. Hernandez, 2012 IL App (1st)

092841, ¶ 67 (“the harmless-error inquiry was, ‘Is it clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error?’ [Citation.] This inquiry is

different than that regarding sufficiency of the evidence.”). The question we must answer is

whether Jackson’s testimony is overwhelming evidence of defendant’s guilt, whether defendant’s

statements are merely cumulative of Jackson’s testimony (Patterson, 217 Ill. 2d at 428), or

whether defendant’s inculpatory statements contributed to the verdict (Cox, 2023 IL App (1st)

170761, ¶¶ 55-56).

¶ 52 Jackson’s testimony is circumstantial as it pertains to defendant’s knowledge about

Joseph’s intent, whether defendant shared that intent, or whether defendant intended to facilitate

Joseph shooting the victims. Several statements that defendant made after the detectives’

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promise of confidentiality (i.e., he and his brother were looking for the victim; he is happy the

victim is dead; they took care of business) provide evidence of intent that would not otherwise be

present and slams the door on defendant’s defense that he was not accountable.

¶ 53 Jackson’s testimony is not overwhelming evidence defendant knew Joseph intended to

shoot Hollins or that defendant intended to facilitate that or any crime. Although the jury could

reasonably draw that inference from Jackson’s testimony, and it would be sufficient to convict,

there are no other facts or circumstances to support those inferences. Nor is defendant’s

inculpatory statement cumulative of Jackson’s testimony. The only other evidence that defendant

knew Joseph’s intent, shared it, and intended to facilitate it, is defendant’s improperly admitted

statement to police. Defendant effectively told police he and Joseph went to the scene to seek

revenge by shooting the person who killed their cousin, and that, with that knowledge before the

shooting, defendant helped Joseph to escape. The only other evidence establishing defendant’s

accountability was circumstantial. Defendant’s statement provided direct evidence of defendant’s

accountability. Therefore, we cannot say beyond a reasonable doubt that the erroneous admission

of defendant’s statement did not contribute to the verdict.

¶ 54 Furthermore, focusing on the character and quality of the illegally obtained evidence as it

relates to the other evidence bearing on the issue of accountability (Cox, 2023 IL App (1st)

170761, ¶¶ 55-56), we find the wrongfully admitted evidence contributed to the verdict. The

State argues that defendant’s confession was of little substantive value because defendant only

agreed with what the detective’s proposed. Regardless, the “character and quality” of the

illegally obtained evidence was direct evidence of facts establishing defendant’s accountability.

Defendant’s statement provided evidence of the fact defendant knew Josephs’s intent, shared it,

and intended to facilitate it. The only other evidence bearing on the issue of accountability was

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Jackson’s testimony, which was entirely circumstantial. Thus, we find that the improperly

admitted evidence likely impacted the jury’s finding of guilt. We believe that it is not possible to

say the admission of defendant’s statement did not contribute to the verdict beyond a reasonable

doubt.

¶ 55 We find the trial court erred in denying defendant’s motion to suppress his statement to

police given after detectives made a false promise of blanket confidentiality and that the error

was not harmless. As stated above, absent the improperly admitted evidence, Jackson provided

sufficient credible circumstantial evidence to establish defendant’s guilt. We have considered

defendant’s arguments that the evidence was insufficient because Jackson was an unreliable

witness and find them unpersuasive. As for defendant’s arguments concerning the reliability and

voluntariness of his statements, we have found the statements were improperly admitted and the

error was not harmless. Remand for a new trial is the appropriate remedy for the error in the

admission of the illegally obtained evidence. People v. McKown, 236 Ill. 2d 278, 311 (2010) (“If

the evidence presented at the first trial, including the improperly admitted evidence, would have

been sufficient for any rational trier of fact to find the essential elements of the crime proven

beyond a reasonable doubt, retrial is the proper remedy.”). We reverse defendant’s conviction

and remand for a new trial.

¶ 56 When this court reverses a conviction and remands for a new trial, we decline to address

any additional issues raised by the defendant that are not likely to recur at trial. People v. Sevier,

230 Ill. App. 3d 1071, 1081 (1992) (“Although we have remanded this cause, defendants raise

several other issues which we must address at this time. Issues on which we do not comment are

unlikely to recur at the new trial.”). In this appeal, there are two issues that are likely to recur: the

Rule 431(b) error, and the motion to quash arrest and suppress statements based on the

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warrantless arrest. Accordingly we will briefly address each. People v. Harris, 39 Ill. App. 3d

805, 812 (1976) (“Since defendant may be retried we must also consider his contention that the

trial court erred in refusing to suppress his oral statements to police officers.”).

¶ 57 ILLINOIS SUPREME COURT RULE 431(b)

¶ 58 Rule 431(b) reads, in pertinent part, as follows:

“[During voir dire the trial court] shall ask each potential juror,

individually or in a group, whether that juror understands and accepts the

following principles: (1) that the defendant is presumed innocent of the charge(s)

against him or her; (2) that before a defendant can be convicted the State must

prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is

not required to offer any evidence on his or her own behalf; and (4) that if a

defendant does not testify it cannot be held against him or her; however, no

inquiry of a prospective juror shall be made into the defendant’s decision not to

testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to

respond to specific questions concerning the principles set out in this section.” Ill.

S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 59 The trial court must ask each potential juror whether they both “understand” and “accept”

the four principles set forth in the rule using the specific words “understand” and “accept.”

People v. Moon, 2020 IL App (1st) 170675, ¶ 52, reversed on other grounds, People v. Moon,

2022 IL 125959 (citing People v. Belknap, 2014 IL 117094, ¶¶ 44-45). The failure to do so is

error in itself. Id.

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¶ 60 In this case, the trial court failed to ask potential jurors whether they understood the Zehr

principles. The court did not ask potential jurors if they “understood” each principle. Instead, the

court only asked potential jurors whether they “agreed” with each principle. Therefore, the trial

court did violate the rule and commit error. Id. Upon retrial, the trial court must fully comply

with Rule 431(b).

¶ 61 MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE

¶ 62 Defendant argues the trial court erred by refusing to quash defendant’s warrantless arrest

and suppress defendant’s statements because police lacked probable cause for the arrest and the

arrest violated the Illinois constitution where police had time to seek a warrant but did not.

“When reviewing a trial court’s ruling on a motion to quash an arrest and suppress evidence, we

accord great deference to the trial court’s factual findings unless they are against the manifest

weight of the evidence, but review de novo the legal question of whether suppression is

warranted under those facts.” In re Rafeal E., 2014 IL App (1st) 133027, ¶ 14 (citing People v.

Hopkins, 235 Ill. 2d 453, 471 (2009)). “In doing so, we may consider evidence adduced in both

the suppression hearing and at trial.” People v. Hood, 2019 IL App (1st) 162194, ¶ 39 (citing

People v. Richardson, 234 Ill. 2d 233, 252 (2009)).

¶ 63 Defendant argues police lacked probable cause because there was no indication Jackson

was a reliable witness, police did nothing to confirm the reliability of Jackson’s statement, and

Jackson did not tell police that defendant “had knowledge of Joseph’s intentions in advance or

that he participated in the planning of the crime.” Defendant argues police had only a suspicion

that defendant knew Joseph intended to commit the shooting. Defendant contends that to support

a finding of probable cause, third party information must bear “some independent indicia of

reliability.” Defendant suggests indicia of reliability only comes when police independently

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verify a substantial part of the information provided. In light of the aforementioned standard of

review, defendant concedes this court should presume the truth of the detectives’ testimony that

Jackson stated he saw defendant driving the car in which Joseph was a passenger before getting

out and committing the shooting and arrested defendant on that basis, but, defendant argues that

we should conduct our own review of whether those facts provided probable cause to arrest

¶ 64 In People v. Jackson, 2014 IL App (3d) 120239, on which defendant relies, the Third

District wrote that:

“[T]hird-party information, such as Eibeck’s, will support a finding of

probable cause for a warrantless arrest, regardless of whether the source of the

information is an eyewitness or other witness, as long as the information

provided by a third party bears some independent indicia of reliability.

[Citations.] An indicia of the reliability of information provided by a third

party ‘exists when the facts learned through a police investigation

independently verify a substantial part of the information’ provided by the

third party. [Citations.]” People v. Jackson, 2014 IL App (3d) 120239, ¶ 84

(citing People v. James, 118 Ill. 2d 214, 225 (1987)).

¶ 65 In James, the appellate court had held than an uncorroborated incriminating statement by

a co-offender was insufficient to provide probable cause. James, 118 Ill. 2d at 220. Our supreme

court found that the lower court in James, similarly to defendant in this appeal, believed there

exists “a firm principle that uncorroborated statements by an arrestee can never constitute

probable cause for the arrest of a co-offender.” James, 118 Ill. 2d at 222. The James court

rejected that conclusion as an inaccurate statement of the law. Id. Instead, the standard is that

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“[t]he information relied upon to establish probable cause to arrest must be supported by some

indicia of reliability” ((Emphasis added.) James, 118 Ill. 2d at 222), and the court takes a

“totality-of-the-circumstances approach in the determination of probable cause” (id. at 223

(citing Illinois v. Gates, 462 U.S. 213 (1983))). “[T]his approach permits a balanced assessment

of the relative weights of all the various indicia of reliability [(of which there are several)]

attendant upon the giving of the probable cause information.” James, 118 Ill. 2d at 223. “[T]he

probable cause determination is a ‘commonsense, practical question.’ [Citation.]” James, 118 Ill.

2d at 225 (citing Gates, 462 U.S. at 230).

¶ 66 It is in “the typical ‘informant’ scenario,” in which “an individual about whom little, if

anything, is known, provides information to the police which implicates another person” that “an

independent showing of reliability is required because of the obvious risk of misrepresentation or

outright fabrication.” Id. (citing Gates, 462 U.S. 213). Independent corroboration provides only

“further support” for the reliability of the information but is not the sine qua non for reliability—

the Jackson court wrote that “the corroboration lends credence to the remaining unverified

portion” of the information. (Emphasis added.) Id. at 224.

¶ 67 In James, the court found that another indicium of reliability was that the witness (a

participant in the offense about which he provided information) was in custody and was not

“offered any specific inducement of ‘deal.’ ” Id. at 224. The court noted that “[i]n such a

circumstance, [the witness has] nothing to gain by providing false information for, once the

falsehood was discovered, he would have to suffer the consequences of misleading police.” Id.

“As one court put it, a person ‘who knows the police are in a position to charge him with a

serious crime will not lightly undertake to direct the police down blind alleys.’ [Citation.]” Id.

(citing United States v. Davis, 617 F.2d 677 (D.C. Cir. 1979)). Yet another “indicia of

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reliability” is where the statements implicating another are “specific and unequivocal.” See

James, 118 Ill. 2d at 222 (partially explaining basis of holding in Wong Sun v. United States, 371

U.S. 471 (1963)).

¶ 68 We recognize Jackson and defendant were not co-offenders, but, as demonstrated above,

that is not dispositive. We find that what is dispositive is that Jackson provided police with

specific and unequivocal information about defendant, Jackson was in custody for another

offense, and Jackson was not offered any specific inducement or “deal” to provide information

about the shooting such that, had police believed Jackson misled them, Jackson would have

suffered the consequences in his own case. Upon a “balanced assessment of the relative weights

of all the various indicia of reliability” (James, 118 Ill. 2d at 223) and viewing “the probable

cause determination [as] a ‘commonsense, practical question,’ ” (James, 118 Ill. 2d at 225), we

find that the information Jackson provided police was sufficiently reliable to support finding

probable cause.

¶ 69 We also find that substantively Jackson provided sufficient information to support

finding probable cause to believe defendant was actively involved in the shooting before or

during the commission of the offense and therefore accountable for Joseph’s conduct.

“Probable cause is defined as reasonable ground to believe that the suspect

has committed a felony. [Citation.]

‘ “Mere suspicion is inadequate to establish probable cause, but the

evidence relied upon by the arresting officer need not be sufficient to prove guilt

beyond a reasonable doubt or even be admissible at trial. Technical rules do not

govern the assessment of whether probable cause existed; rather, practical,

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commonsense considerations guide that determination.” ‘ [Citations.]” People v.

Gomez, 2011 IL App (1st) 092185, ¶¶ 62-63.

The probable cause inquiry “rests primarily on the facts and information known to the

arresting officers at the time the search and arrest are made.” People v. Little, 322 Ill.

App. 3d 607, 612 (2001).

¶ 70 As stated above, the circumstantial evidence Jackson provided is reliable and supports a

reasonable inference of defendant’s active involvement. Jackson saw defendant sitting in the car

with Joseph for several minutes before the shooting, Joseph got out and shot the victims, and

defendant drove up and carried Joseph away. The evidence supports an inference defendant was

waiting with Joseph for the shooting to occur and to then spirit Joseph away. Therefore, the

evidence supports a reasonable inference defendant shared Joseph’s criminal intent and/or that

there was a common criminal design. Therefore, the information was sufficient to lead a

reasonable person to believe defendant committed an offense. People v. Butler, 2021 IL App

(1st) 171400, ¶ 41 (“Probable cause exists when the facts and circumstances known to the officer

at the time of the arrest lead a reasonable person ‘to believe that an offense had been committed

and that the offense was committed by the person arrested.’ ”). We find police had sufficient

probable cause to arrest defendant.

¶ 71 Next, defendant argues his arrest violated the Illinois constitution because “police had

time to get an arrest warrant but failed to do so.” Defendant relies primarily on the reasoning of

People v. Bass, 2019 IL App (1st) 160640, finding “investigative alerts” used by the Chicago

Police Department violate the Illinois constitution. See also People v. Smith, 2022 IL App (1st)

190691. Defendant likens his arrest to an arrest pursuant to an “investigative alert” because no

warrant issued and nothing indicated the arresting officer had personal knowledge of Jackson’s

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statement (and thus, we surmise defendant to argue, the arresting officer must have relied on a de

facto “investigative alert” by the detectives who took Jackson’s statement).

¶ 72 “A defendant bears the initial burden of proof in a motion to quash arrest and suppress

evidence. [Citation.] Once he shows a prima facie case of an unconstitutional arrest, the burden

shifts to the State to show his warrantless arrest was based on probable cause. [Citation.]

However, the ultimate burden of proof remains with the defendant.” People v. Little, 2021 IL

App (1st) 181984, ¶ 60. “[W]e may affirm the trial court’s ruling on any basis supported by the

record.” Hood, 2019 IL App (1st) 162194, ¶ 39.

¶ 73 In Bass, 2019 IL App (1st) 160640, the opinion held that an arrest is unconstitutional

under the Illinois constitution when it is effectuated on the basis of an investigative alert issued

by the Chicago Police Department. Bass, 2019 IL App (1st) 160640, ¶ 71. Subsequently, our

supreme court vacated those portions of Bass, 2019 IL App (1st) 160640, dealing with, inter

alia, “the constitutionality of investigative alerts.” People v. Bass, 2021 IL 125434, ¶ 31. “[O]nce

an appellate decision has been vacated by our supreme court, it ‘carries no precedential weight.’

[Citations.]” People v. Erwin, 2023 IL App (1st) 200936, ¶ 16 (citing Mohanty v. St. John Heart

Clinic, S.C., 225 Ill. 2d 52, 66 (2006)). Despite that rule, after our supreme court vacated the

holding at issue, a panel of this court seemingly applied the vacated holding in Bass, 2019 IL

App (1st) 160640, and held that the “defendant’s warrantless arrest was improper, as it was

premised solely on an investigative alert issued six months earlier, meaning the police had ample

opportunity to obtain an arrest warrant but did not do so.” (Emphasis in original.) People v.

Smith, 2022 IL App (1st) 190691, ¶ 66.

¶ 74 The Smith court acknowledged our supreme court’s judgment in Bass, 2021 IL 125434,

but claimed that the reasons our supreme court vacated the lower court’s judgment in Bass (to

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avoid deciding a moot question and rendering an advisory opinion) were not present in Smith,

and “a discussion of investigative alerts is necessary to decide [the] defendant’s appeal.” Smith,

2022 IL App (1st) 190691, ¶ 67. After conducting its own analysis of the issue, the Smith court

concluded that the “defendant’s warrantless arrest, based solely on an investigative alert, violated

article I, section 6, of the Illinois Constitution.” Smith, 2022 IL App (1st) 190691, ¶ 99.

¶ 75 Recently, this court declined to “decide whether the holding in Smith, which echoed the

Bass majority’s now-vacated holding, was correctly decided” (People v. Erwin, 2023 IL App

(1st) 200936, ¶ 47) because the good-faith exception to the exclusionary rule would apply in that

case (id.). “When the police conduct a search or seizure based on an ‘objectively reasonable

good-faith belief’ that it is lawful, the [exclusionary] rule’s deterrence rationale has little or no

force, and the exclusion of evidence is not warranted.” Erwin, 2023 IL App (1st) 200936, ¶ 26.

The good-faith exception applies to claims under the search-and-seizure clause of the Illinois

constitution. Id. ¶ 31.

¶ 76 In Erwin, the court found that when the petitioner in that case was arrested, “no case from

a reviewing court had directly ruled on the legality of investigative alerts *** under our search-

and-seizure clause.” Erwin, 2023 IL App (1st) 200936, ¶ 33. When an investigative alert was

relevant to an issue on appeal, “the rule we would apply was that the State could demonstrate

probable cause by relying, in whole or in part, on the facts known to the officer(s) who issued the

investigative alert.” Erwin, 2023 IL App (1st) 200936, ¶ 36. “[I]t was [also] settled law that

warrantless arrests made in public and based on probable cause do not violate the fourth

amendment [or the Illinois constitution,] even when the officers had time to get a warrant before

making the arrest.” Id. ¶ 42. The court concluded:

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“The overall legal landscape at the time of petitioner’s arrest leaves no

doubt that a reasonable officer, striving in good faith to comply with the law,

would conclude that a warrantless public arrest, pursuant to an investigative alert,

was perfectly legal under both Illinois and federal constitutional law—as long as

there was probable cause for the arrest, as is uncontested here.” Erwin, 2023 IL

App (1st) 200936, ¶ 46.

¶ 77 In this case, we reach the same conclusion as the Erwin court and affirm the trial court’s

judgment denying defendant’s motion to quash arrest and suppress evidence because we find the

good-faith exception applies to defendant’s arrest. We have already decided police had probable

cause to arrest defendant. At the time of defendant’s arrest, a reasonable officer would believe

that such an arrest was lawful “based on the facts known to law enforcement as a whole.” Erwin,

2023 IL App (1st) 200936, ¶ 39. Defendant was arrested in 2011 and Bass was decided by the

appellate court in 2019. “[T]he constitutionality of investigative alerts was first called into

question in 2012 *** in the special concurrence filed in People v. Hyland, 2012 IL App (1st)

110966, ¶¶ 38-52.” Erwin, 2023 IL App (1st) 200936, ¶ 6. But even then, “[t]he Hyland

concurrence *** stood as a notable objection to a longstanding and judicially tolerated police

practice. But because ‘the words and ideas expressed in [a] special concurrence’ ‘do not speak

for this court,’ it did not change what seemed to be settled law.” Erwin, 2023 IL App (1st)

200936, ¶ 8.

¶ 78 We hold the trial court did not err in denying defendant’s initial motion to quash arrest

and suppress statements. Police had probable cause to arrest defendant.

¶ 79 The trial court committed reversible error when it denied defendant’s subsequent motion

to suppress statements. Accordingly, the trial court’s judgment convicting defendant is reversed

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and the cause remanded for a new trial. Upon retrial, defendant’s statement should not be

admitted into evidence because defendant’s waiver of his Miranda rights was not voluntary, and

the trial court must strictly comply with Rule 431(b).

¶ 80 CONCLUSION

¶ 81 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

and the case remanded for further proceedings not inconsistent with this order.

¶ 82 Reversed and remanded.

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