good morning may it please the court my name is jenny beach and i represent petitioner appellant mr marshall mcdaniel mr mcdaniel is entitled to hay vs relief the district court in this case rightly found constitutional air in the form the court should the court should remain on this case to the state court and oh wow mr mcdaniel to bring his illegal arrest claim either at that illinois court of appeals or out or else give him a new trial in which this is the confession is suppressed and does not come into evidence and we would succeed because both the up and the illegal arrest argument was mayor mayor for argument that should've  that he would have won on appeal and if if it goes back to the trial court and mr mcdaniel gets a new trial without the confession he absolutely would would would be better off and  trial before the trial and the trial judge did take into that into consideration the arguments here and wrong concluded that there was probable approximately at eight thirty five i'm january sixteenth two thousand and one and that's exactly what the trial court found here at the trial court makes a finding in the state trial court makes a finding that that's when mr mcdaniel home without a warrant and without probable cause he was transported to the police station how in a small room with no windows only a metal bench he was held there for twenty four hours he didn't he did not sleep and he did they did not that this the state contends responded contents here that they did it at the time because of a tentative photo identification but a tentative photo photo identification and under the control and supreme court standard for what constitutes probable cause d not give probable cause you have to have evidence that that the crime was committed by this particular defendant and that and that's the best case and a tentative photo identification i believe the witness  that you know he wasn't sure it was him so that so that doesn't provide for a problem well that wasn't the only factor right we had the accumulation of other facts up until that point that was sort of the period at the end of the sentence that they  somebody matching his description was seen with the trash can the body was found by the trash can the trash is four doors down from where mr mcdaniel lived and when that police officer who saw him pulling the trash can into the parking lot where the body was found the identity he identified the photo array of somebody who looked like him is that what the facts were he he in the photo identification said if he wasn't sure if it was him it may have been and might you can something to that effect on the testimony and that can be found at seventeen dash two at page twenty three but what you have to keep in mind here is we're really looking at what did the arresting officers know at the time they arrested and we're not looking at what probable cause there was at the time he made the confession because there is a legal arrest here and under brown there you have to show that the supreme court has directed that courts should inform should apply the three part task of brown and so when once you have an illegal arrest you have to show that analysis that analysis clearly supports suppression here the first factor is the temporal proximity between the arrest and the confession and as this court has observed an illegal arrest can be exploited by a lengthy coerced so there's testimony and record evidence that he was coerced and there was a there was a a motion brought up the trial court asking that the suppression be the confession be suppressed for that reason and those reasons as well but that was so for various reasons first if if the question is can we impute the tentative photo identifications with a rusty and officers we can't because the record shows that the photo identification happened after mr mcdaniel was arrested second even if it happened before it doesn't given it isn't enough to probable cause and therefore even if we didn't even if we could impute that even if it happened before then it's still not enough and that agency would be in for be in the form of the detectives here have having told the arresting officers before they arrested mr mcdaniel that the photo id had happened and the record is clear that that's not the case and the records also clear that there was no direction and half of the detectives to tell telling me arresting officers that they should arrest mr mcdaniel and and i just want to clarify one point on that we do say on page seventeen of our reply brief to testimony at the suppression hearing to that effect and there's also even stronger record evidence of that that can be found in the trial transcript and so bad at docket seventeen dash to page one seventy one so i just wanted to make that point because alabama you cannot take a fruit of the arrest and use that as an intervening circumstance under under the brown taps so even though there was a line out that that can't come into consideration here as as a similar argument came up and the fact that the arrestee consented to the search couldn't be an intervening circumstance because that consent itself was a fruit of the illegal arrest and so therefore  questioning that they were just going to his house to question the you know to ask him about the crime but as the trial court held a holding that's never been challenged on appeal finding that's never been challenged on appeal mr mcdaniel was seized for the purposes of the fourth amendment when he was handcuffed in his home five minutes after four police officers arrived there and escorted to the police station he never thought he could leave he was never told he could leave in fact the wrist testimony if he had asked to leave he would have been able to and that the is is has almost identical factual circumstances and in terms of whether or not he was arrested and in that case the court found that he met that for seizures whether or not they really did think they were doing their the wrong drug lords the main thing you look at in terms of flagrant see in the brown factor is is what was the purpose and that's because you don't want to have a rast where the purpose is just to question what you want to police officers to go in question and not harass you they can ask them questions and the purpose here is clear in the testimony of the officers clear on that which is that mr mcdaniel they went to to question him as a witness and not a suspect and so the purpose is is identical to that is very close that as in brown they had similar testimony from the officers and they found that the third factor the purpose of  come please the court i'm assistant attorney general here in o'connell on behalf of the respond and i'd like to begin by clarifying a couple of the actual issues that were raised in the previous argument the question as to what point he was placed under arrest i the actual arrest because it also talked about as factors supporting the address that he was taken from the home in the police car was not given the option to drive and sell as also supporting this inference that and objectively reasonable person would not have felt free to refuse at that point i know the reason that we should find out as the point of arrest is that the court did find that the entire collective knowledge was sufficient at the time of the arrest and it included within that collective knowledge the photo array id and we know from the record that the photo ray id occurred sometime between eight thirty and nine o'clock pm it was going on roughly contemporaneously with the interview but what about the the arresting officers were not are aware of the actual photo id what we know is that they were aware of everything detectives had learned up to the point of eight thirty pm so the record at fourteen eight hundred eighty one show that they knew that officer blackman had seen an individual calling a trash can and they knew that it matched the description of the petitioner they knew in terms of race age height and weight the description of  totality the information available to them the fact that this was the victim's boyfriend that they had been seen recently together within days of her body being found and they lived together at a place that was very close to where her body was found i think within a few blocks so all of that taken they gather was enough to provide the arresting officers with probable cause and at a minimum the illinois appellate court in concluding that that was sufficient reasonably applied supreme court preceden but if the court disagrees and says that a reasonable court could not find probable cause until a photo or a id we do know that that was properly imputed by the state trial judge to the the arresting officers under clearly established fifteen part precedence so the issue here is officially what case general probable cause so you're just wrong on the general is there's a separate principle here involving imputation of knowledge or collective knowledge however you want to phrase it what precedent do you have for that doctrine i would say was clearly established is the general standard but we also know that  that supreme court has recognized in somewhat vague terms this notion of imputed or collective knowledge and that was in illinois vs and dre as there is a footnote to that effect there have been other cases where the supreme court has something similar in that where you want to serious acting as the instruction of another that you can use the knowledge of the instructing officer to add up to probable cause to arrest at that time those cases also support application of a collective knowledge doctrine here they do involve an express instruction which isn't present here but they don't purport to be defining outer limits of this collective knowledge doctrine so what we have to the supreme court is issue of what is clearly established under collective knowledge and he said the supreme court just hasn't ruled one way or the other it's summarized in various courts of appeals and state courts which had adopted differing approaches and said in light of all of these different approaches by these courts we can't say that the supreme court is clearly established where the other so at a minimum under twenty to fifty four d the court should find that the illinois courts application of that doctrine here was not an considering the issues to raise she did have before her suppression hearing testimony the trial judge's findings based on collective knowledge and all of the information that we're relying on to say that the arresting officers themselves had probable cause so appellate counsel in reviewing that information certainly knew that it was a preserve issue but had multiple grounds to conclude that this was not going to be a meritorious issue for appeal when we don't know that because the appellate courts denied it or the post conviction court's denied him a hearing correct that's correct and we don't know from appellate counsel what reasoning went into this but we generally apply a presumption that counsel operates effectively and does what they're expected to do and what an issue based on reference to polygraph examination testimony and found that that was the strongest issue based on their entire record to pursue an appeal and just to clarify and there's certainly no clearly established supreme court law with respect to polygraphs but we did in our answer also say that this had a basis in state law and that's relevant to the issue of counsel to deficiency because she was pursue and i think it's important to note that illinois courts are particularly skeptical of polygraph evidence so even though this was not a preserve issue and it was reviewed for plain error in many the illinois courts had concluded that this was so potentially prejudicial that essentially by showing error a party had shown that it was plainer and had found to be reversible on that basis and it there was no that it was clearly stronger than the polygraph issue that counsel raised and petitioner hasn't met his burden of showing that at this point i'd also like to clarify that certainly by the time petitioner wasn't here gaited probable cause had developed the dispute in this case is over when the photo array idea occurred and whether that can be attributed to arresting officers that plainly occurred before petitioner had even arrived at the district six station sometime between eight thirty nine o'clock petitioner was then placed in a lineup before anyone asked him any questions at all about his whereabouts or his relationship with the victim so the first thing that happened when he was taken to area to at ten o'clock was that he was put in a lineup and at that point to the extent blackman's photo reality is somehow ten tentative he was absolutely certain when he viewed the line up that petitioner was the man that he had seen carting around a city trash can with and nearly twenty four hours of the body being found and acting very suspiciously so that was present at the time  really can't be any question that that provided probable cause it wasn't necessary there were other fact that had already established probable cause that certainly i think it's beyond dispute that the positive solid id from the lineup would have provided  the reason that it took so long it wasn't continual questioning for whatever twenty four hours it took for him to finally make a confession what was going on during that period was that he had provided some alibi witnesses so this cite but i believe her testimony at trial indicated that she arrived the day after he had first been taken into custody around eight thirty or nine o'clock so she was not there during the target correct so questioning she did though at some point talk privately with the petitioner and to try to get information from him about his treatment by the detectives and she testified that he said at that time that you know he had been treated well and the detectives themselves indicated that it was apparent to them that he was cooperating in the investigation and that he was willingly providing answers to the question testified that he was not handcuffed at any point and the off the record suggest that the only time he was handcuffed was actually in his house and under circumstances where it was immediately after they arrived he began to act agitated and one of the officers at that point can't cut him for a pat down but other officers then said oh i think everything's fine we're taking out the handcuffs we want to show you not you're not under arrest at this point so it was only during that brief period i believe that he was handcuffed and it was explained and that the reason for doing that at that time was because an officer had become fearful of his safety so just to conclude given the court number of grounds there are three separate and independent reasons that this claim would have failed on appeal had counsel raised it it's because the arresting officer had probable cause the entire team including the detectives collectively clearly had probable cause at the time of the arrest and what time are you assigned to the arrest i'm sorry i think a fair reading of the record is that he was arrested when he was transported from his house which was approximately nine o'clock and then also even if the arrest was unlawful there was no exploitation here there was no flagrant misconduct certainly the officers unintentionally in effect arrested him thinking that he was cooperating and they didn't even use the opportunity to question him but waited and said until that attackers could d s l but any one of these three bases would have been enough for competent appellate counsel reviewing the record to decide that this was not a m thank you your honor i honestly just wanted to you know a few things in rebuttal i agree that the testimonies conflicting on whether or not mr mcdaniel was handcuffed when he was in the interrogation room but i will say that he was whacked in that room and the testimony is clear that he would not have been allowed to leave and that's or was locked and so i simp similar to being handcuffed from my perspective as for the time of the arrest looking at the  trial court's ruling on that the trial court says let me cut to the chase he was handcuffed in his home at one point he was in custody at that moment i don't think he was free to leave so let's talk about whether they had a right to do that and so he was handcuffed at eight thirty eight thirty five according to the record respondent said that the arresting officers were aware of everything that the detectives were aware of what the exception of the photo i kind of occasion there's no evidence record that the arresting officers were ever told about the address on the trash can so i just wanted to make that point clear and also that arresting officer that testified at the suppression hearing testified under oath that what the arresting officers knew to determine whether or not there was probable cause now this court and the supreme court has carved out some very small exceptions to that rule and those that say those exceptions do not apply here and so that supreme court i would encourage the court to look back at what respondent said about that to the district court did they did make the argument that it was partly in their list behavior relief but also for the reasons that that restated and that the illinois court of appeal how so for the reasons we present in our brief we ask that you grant mr mcdaniel