People v. Tomberg

2022 IL App (2d) 200591-U

• Court: Appellate Court of Illinois
• Decided: March 28, 2022
• Docket: 2-20-0591
• Status: Unpublished

Opinion

2022 IL App (2d) 200591-U No. 2-20-0591 Order filed March 28, 2022

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 04-CF-1265 ) GREGORY TOMBERG, ) Honorable ) Jeffrey S. MacKay, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice Bridges and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: The trial court properly denied defendant’s motion for return of his property following his prosecution for predatory criminal sexual assault of a child. Retention of the property was plainly authorized by statute given the nature of the prosecuted offense and the type of property at issue. Defendant cites no pertinent legal authority to support his request for return of lawfully seized property that might be relevant to future litigation.

¶2 In 2004, Itasca police executed a search warrant for the residence and vehicle of defendant,

Gregory Tomberg. In 2008, after a jury trial, defendant was convicted of eight counts of predatory

criminal sexual assault of a child (720 ILCS 5/12-14.1(a) (West 1996)) and four counts of

aggravated criminal sexual assault (id. § 12-14(b)). The court sentenced him to a total of 100 years 2022 IL App (2d) 200591-U

in prison. On appeal, we confirmed his convictions and sentences. People v. Tomberg, No. 2-08-

0182 (unpublished order under Illinois Supreme Court Rule 23). In 2011, defendant filed a petition

for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). The

trial court summarily dismissed the petition and we affirmed. People v. Tomberg, 2012 IL App

(2d) 110985-U.

¶3 In 2020, defendant filed a pro se petition for the return of property that the police had

seized. The State objected to the return of most of the items. After a hearing, the trial court denied

defendant’s request for the return of the disputed items and denied his motion to reconsider.

Defendant appeals pro se. We affirm.

¶4 I. BACKGROUND

¶5 Defendant’s petition alleged as follows. On May 11, 2004, Itasca police officers arrested

him, searched his residence and vehicle, and seized numerous items. In 2019, defendant mailed

requests to the police department and the Du Page County State’s Attorney’s office for the return

of numerous specified items. He received no response. Defendant’s 2020 petition for return of

his property listed 24 categories of personal property that he wanted to be returned to his sister,

Pamela Gretza. The petition did not provide any statutory basis or other legal authority for

ordering the return of the items.

¶6 The State did not file a response. On June 25, 2020, the trial court held a hearing where

the assistant State’s attorney appeared, arguing that the State should retain the evidence. Fisher

told the court that defendant might file a successive postconviction petition, or the State might

petition to have him adjudged a sexually violent person. Moreover, among the items seized were

photographs of a minor whom defendant had admitted molesting; there had been no prosecution

to date, but one was possible.

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¶7 The trial court stated that it would order the release of the uncontested items. The court

then noted that it had gone through the police department’s inventory of the seized items. All

items were seized lawfully; no court had held otherwise. Of the contested items: (1) some were

contraband, 2) defendant had used some to commit sexual offenses, (3) some could not be lawfully

possessed by a convicted sex offender, and (4) other items could have evidentiary value in future

proceedings, such as a collateral attack on the judgment.

¶8 The court entered a written order requiring the return of the uncontested items to Gretza.

For reasons stated at the hearing, it denied defendant’s petition as to the remaining items and

ordered the Itasca Police Department to preserve them.

¶9 Defendant moved to reconsider the judgment, contending that none of the items he wanted

to be returned were contraband or were proven to have been involved in any illegality. Defendant

disclaimed any wish to possess any of the items in prison but contended that family members

should have the items returned to them.

¶ 10 On September 25, 2020, the court held a hearing where the assistant State’s attorney

appeared for the State. He reiterated his arguments from the previous hearing. He argued further

that, under section 116-4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-(4)

(West 2020)), in a sexual-offense case such as this one, the police are required to retain any seized

evidence that might contain forensic evidence until the completion of the defendant’s sentence.

He asserted that even items that were not contraband had potential evidentiary value. Moreover,

some items were recovered from a garbage container, so defendant had no possessory interest in

them.

¶ 11 The court denied defendant’s motion to reconsider. It reiterated its reasoning from the

initial hearing and added that section 116-4 of the Code defeated the petition. Defendant appealed.

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¶ 12 II. ANALYSIS

¶ 13 In his pro se appeal, defendant contends that he is entitled to the return (to his sister) of the

contested articles of personal property that the police had seized. Essentially, defendant reiterates

the arguments that he made in his petition and his motion to reconsider the judgment. Defendant

cites a single legal authority, People v. McCavitt, 2019 IL App (3d) 170830, rev’d 2021 IL 125530,

to support his claim of error.

¶ 14 Defendant also contends that section 116-4 does not apply retroactively here because it was

enacted after he was arrested and his home and vehicle were searched. However, defendant cites

no basis for claiming that section 116-4 was enacted after the searches and seizures here (a false

notion anyway (see Pub. Act 91-871, § 10 (eff. Jan. 1, 2001) (adding 725 ILCS 5/116-4))) or that,

if this were so, the statute could not apply retroactively. According to Illinois Supreme Court Rule

341(h)(7) (eff. Nov. 1, 2017), arguments not raised on appeal are forfeited. An appellant may not

preserve a contention by asserting it baldly. A reviewing court is entitled to have the issues clearly

defined with pertinent authority cited and is not a depository into which the appealing party may

dump the burden of argument and research. People v. Hood, 210 Ill. App. 3d 743, 746 (1993).

Indeed, insufficiently developed arguments are forfeited. See Holmstrom v. Kunis, 221 Ill. App.

3d 317, 325 (1991). The retroactivity issue is potentially complex, and we shall not plunge into it

on our own.

¶ 15 Turning to the merits, respondent’s appeal fails in two respects. First, partly because of his

forfeiture, he does not refute the trial court’s conclusion that section 116-4 defeated his petition.

Second, even aside from section 116-4, he does not provide any valid authority as a basis for his

petition.

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¶ 16 Because defendant presents us with issues of law, our review is de novo. See People v.

Henderson, 343 Ill. App. 3d 1108, 1115 (2003).

¶ 17 As pertinent here, section 116-4 reads:

“(a) Before or after trial in a prosecution for a violation of Section *** 12-14 ***

of the Criminal Code of 1961 ***unless otherwise provided herein under subsection (b) or

(c), a law enforcement agency or an agent acting on behalf of the law enforcement agency

shall preserve, subject to a continuous chain of custody, any physical evidence in their

possession or control that is reasonably likely to contain forensic evidence, including, but

not limited to, fingerprints or biological material secured in relation to a trial and with

sufficient documentation to locate that evidence.

(b) After a judgment of conviction is entered, the evidence shall either be

impounded with the Clerk of the Circuit Court, or shall be securely retained by a law

enforcement agency. *** Retention shall be until the completion of the sentence, including

the period of mandatory supervised release for the offense ***.

(c) After a judgment of conviction is entered, the law enforcement agency required

to retain the evidence described in subsection (a) may petition the court with notice ***.”

¶ 18 An unambiguous statute must be applied straightforwardly. People v. LaPointe, 365 Ill.

App. 3d 914, 921 (2006), aff’d, 227 Ill. 2d 39 (2007). Here, we do so. Section 116-4 plainly

requires the retention of the evidence.

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¶ 19 We turn to our second basis for affirmance. As in the trial court, respondent has failed to

provide any valid legal authority requiring the immediate return of evidence seized legally and

might be relevant to possible future litigation.1

¶ 20 Defendant cites no statutory authority at all. His sole case authority is the appellate court’s

opinion in McCavitt, which our supreme court reversed. Thus, defendant’s argument lacks any

valid legal authority and we could deem it forfeited. However, we shall examine McCavitt to show

why it has no application here.

¶ 21 In McCavitt, in 2013, the defendant, a Peoria police officer, was charged with aggravated

criminal sexual assault, based on images the police found via a search of his computer. The search

was under a warrant authorizing a search for digital images or other evidence of aggravated

criminal sexual assault, unlawful restraint, or unauthorized video recording. Detective Jeff Avery

copied the computer’s hard drive (EnCase file) and saved it on his computer. After the defendant

was acquitted of all charges in 2014, he requested the return of his property, including the

computer. The trial court denied the request. McCavitt, 2019 IL App (3d) 170830, ¶¶ 2-5.

¶ 22 In 2014, as part of a department investigation Detective James Feehan obtained a copy of

the EnCase file from Avery, and found apparent child pornography. The defendant moved for the

return of his property. The trial court never ruled on the motion. The defendant was charged with

1 We note that, in particular, respondent does not provide authority requiring that a court

or police department return one person’s property to another who has no possessory interest herself

in the property, especially where the former concedes that he will probably be incarcerated for the

rest of his life and disclaims any interest in physically possessing any item himself. However, as

this issue was not squarely raised by the State or the trial court, we shall not address it further.

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unauthorized video recording. Feehan obtained a warrant to search the EnCase file and found

more pornography. The defendant was charged with multiple counts of child pornography, based

on images from the EnCase file. Id. ¶¶ 6-8. He moved to suppress the images, arguing that as he

had been acquitted of the 2013 charges, no charges were pending when the 2014 warrant was

obtained. The trial court denied the motion, and, after a jury trial, defendant was found guilty of

numerous charges based on the EnCase file. Id. ¶¶ 8-11.

¶ 23 On appeal, the defendant argued first that the 2014 search violated the fourth amendment.

The State responded primarily that the defendant had no expectation of privacy in the EnCase file,

because it had been lawfully seized. Id. ¶ 13. The appellate court held that, once an item has been

lawfully seized and searched, it may be searched again without a warrant as long as the item

remains in the continuous possession of the police. Id. ¶ 17. However, “the government may not

retain seized property indefinitely.” Id. ¶ 21. Defendant relies upon this passage without further

elaboration or discussion of its context in McCavitt.

¶ 24 The appellate court next observed that the fourth amendment “may be violated when the

State fails to quickly return information contained in a mirrored hard drive that is not within the

scope of the warrant.” (Emphasis added.) Id. ¶ 21. The court then held that Feehan’s 2014 search

“without a warrant” violated defendant’s fourth amendment rights because the police retained data

in the EnCase file that did not fit within the scope of the 2013 warrant. Id. ¶ 25. Therefore, the

police could not legally retain the EnCase file once the trial ended. Id. The court reversed the

defendant’s convictions and remanded the cause (id. ¶¶ 28-32).

¶ 25 The supreme court reversed the appellate court and affirmed the trial court. The court

noted that the defendant had failed to invoke legal authority for the return of his computer or copies

of his hard drive. Id. ¶¶ 80-81. The court further held that Feehan’s 2014 search had not exceeded

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the scope of the 2013 warrant, because he was looking broadly for evidence of unauthorized video

recording; the child pornography was properly seized under the plain-view doctrine. McCavitt,

2021 IL 125550, ¶¶ 13-15.

¶ 26 McCavitt is pertinent only to the extent that it undermines defendant’s claim. Like the

defendant in McCavitt, defendant cites no valid legal basis for the return of property seized per a

valid warrant. Moreover, he does not even contend that the seizures exceeded the warrant’s scope,

making his argument, if anything, even weaker than the defendant’s in McCavitt. Therefore, we

must reject his appeal.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 29 Affirmed.

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