or next case on the call the docket is agenda number eight scuse me case number one one three four four nine people versus louis c fitzpatrick counsel for the p good morning you're on earth my name is barbara passion and i represent was fitzpatrick this morning i would own and mischa we like to note that i'd like to stand on my briefs with regard to the second issue of this brief with your honor permission i'll just focus on the first issue which is whether illinois law provides a greater search and seizure protection pursuant to article one section six of the illinois constitution then they would have under the fourth court and the exact issue was already i think it had been argued but it hadn't been decided so at the time i wrote my p l a i thought that issue was covered and as it turned out there was a factual difference that made this court rule in a way that i didn't expect in gutierrez the judge didn't have anything to do with the order for public defender fees so your hon wade we don't need to remain and we're just going to vacate the order in my circumstance the judge did order the fee he just didn't hold a proper hearing so the appellate court said well we need to remain in that situation so at that point i had already filed appeal a and i was left with the pro the second question of the group here is brief was whether there should be a remained so that that's why i did it that way i didn't have prohibit it and also there was not or are you ok the fourth amendment either requires nor prevents individual states from providing greater search and seizure protections to illinois citizens in  state constitutions in fact the illinois legislator illinois legislature has already taken the first step in that regard by enacting section one hundred seven dash twelve which permits a police officer to exercise the crowd discretion in deciding whether to arrest someone for a minor offense in an acting a statute like that the legislature legislature can't possibly have intended to permit police officers to arrest citizens arbitrarily any exercise of discretion by definition involves a consideration of the reasonableness of the individual circumstances present at the time  was stopped for walking down the street instead of on the sidewalk police officer curley stopped him and patted him down for officer safety although he also testified that he did not fear for his safety after the pat revealed nothing illegal officer curley put him in handcuffs took him to the station called for backup took him to the station and performed a second or throw arrest and only at that point that he find it very small amount of cocaine in fitzpatrick sock your honors the police officers decision in this case wasn't reasonable probably the most telling aspect of the unreasonable this of this  is the fact that fitzpatrick's companion who was also walking in the street and not on the sidewalk was not arrested what about it water well at water's done the united states supreme court has has interpreted the fourth amendment and i think well i think that opinion is flawed because the atwater opinion does not does not address reasonable n search and seizure cases always talk about reasonableness every a warrants to get a warrant you have to have reasonable suspicion you need to do a terry stop you have to have a reasonable suspicion reasonable this is always a question that comes up in search and seizure cases and that would doesn't address it but it's that said the supreme court has said what it is sad so the fourth amendment is not at play here that doesn't mean that this court can't interpret the illinois constitution to so my question is how can we agree with your position to look at the state constitution without overruling to by recent opinion those because of bias also talked about  plus and if you you can i'm not asking you to ignore atwater altogether i'm just saying in circumstances where again i think it was or was decided incorrectly but in circumstances where someone makes an arrest for a petty offense illinois has the right to say that at least the officer has to exercise reasonable discretion our legislature has but in this fitzpatrick case limited lockstep would be fine there again i can only repeat there's an illinois statute there already that gives officers an alternative to arrest and petty offenses if if this exercise of discretion hasn't already been provided then what is the point of even having such a statute custody all arrests for petty offenses without anything else this case has something else is going on for example had he stopped fitzpatrick and smelled marijuana on him all right then then arrest them and are and search of the police officers and i don't think there should be an automatic yes or no in a petty offense it to ation i'm not saying it should never happen and i'm not saying it should always happen i'm just asking this court to exercise reasonable this in certain situations like this and and to assess the reasonableness of the police officers behavior the officer here have an option to a citation and is that what you're arguing is that somehow we should look at this and say it has to be  judgment as to the results of the choice between the two yes that's exactly what i'm saying he certainly could have and should have written a citation he once he patted fitzpatrick down and found nothing and he knew that the offense before him was walking on the street instead of the sidewalk there was no reason not to issue him a ticket in the taylor case which is the second to district case the man was stopped for riding his bike on the sidewalk well in that case the officer stopped him and asked him for identification and asked him if he would be able to post a bond and the man said no and only then did he take him in there in situations where these sort of arrests have been upheld there has always been something more than just the petty offense itself to justify the actual arrest and that means an assessment of reasonable this and that's what i'm asking for this court here to endorse a policy that requires that arrest in illinois because the tuition only reasonable therefore i'm asking that the order denying mr fitzpatrick this motion to suppress be vacated and that his conviction for possession of a controlled substance be over good morning your honors please the court my name is true meyer the illinois attorney general's office and i represent the appellee people the state of illinois there is only one issue raised in the peel way this court allowed in this case and that is whether article one section six of the only constitution one thousand nine hundred seventy should be interpreted in accord with that water versus lago this to in which the united states supreme court held that the fourth amendment permits warrantless arrest for finally offenses committed in the presence of the arresting officer and this kid this court held held in people versus tobias that is it is the only court solemn is no long standing illinois case precedent which is the standard for breaking from walk step articulated into bias that contravenes out water in fact the very opposite longstanding i illinois thirty is in complete harmony with the holding out water in a parent's opening brief he urged this court to adopt a fine only offense that delineation and now just urges the court to require reasonable mace but the entire point of that water is that if an offense is committed in the presence of an officer it is inherently reasonable for the officer to make that arrest and you know and that would be even for someone driving one mile over the speed limit yes your honor the only law and constitutional law affords officers in the  this court to break from last and again it all goes back to the intent of the of the people who wrote in ratified the only constitution it was their intent as this court recognized in the bias that the protections offered by article one section six is search and seizure language would be coach terminus with the protections offered by the cognate language in the fourth amendment so there has to be some sort of longstanding precedent that preceded ratification of the one nine hundred seventy constitution that contravenes later interpretation of the fourth amendment in order for the intent of the those who wrote ratify the constitution to have been something previous illinois constitution was interpreted in lockstep with the fourth amendment so it was indeed their intent that they that lockstep interpretation continue so sorry and rather long winded answers your that a person has committed or is committing an offense any offense and the people of this court in people versus hammond from two thousand and eleven recognized that section want to seven dash two affords officers discretion to handle violations in the field again just to show that the consonance of illinois law without water runs deep in illinois authority this court commenting on a predecessor section want to seven perhaps particularly relevant in the context of this case section sixteen dash want to a of the only vehicle code provides that state police shall make arrest for violations of the prison provisions of this code of which section eleven also echoing cabal us again this court leaves expansion of basic constitutional rights to either the general assembly or to constitutional amendment as this court noted in  as such expansion of rights is not the function of this court or of any court atwater importantly explicitly recognize the power of state legislatures to quote impose more strict of safeguards of section or article one section six in this case as we point out in our brief section one of seven dash twelve doesn't actually help appellants at all because it merely allows the issuance of a notice to appear rather than  demanding one in lieu of a rest so in other words the section cited by appellant actually expands officer discretion rather than rather than constricts it the recent united states supreme court of florence versus board of chosen freeholders in the county of burlington highlights another good example of the general assembly's power and willingness to exercise power to augment constitutional protections in that case the dissent noted that section one of three dash one of the code of criminal procedure explicitly bars strip searches of people arrested for traffic regulatory or misdemeanor offenses which in addition to  demonstrating the state legislature's power to reasonably augment constitutional protections goes to show that officers do have the power to arrest people for such offenses traffic regulatory or misdemeanor offenses finally your honour's if there are no more questions on the constitutional question i would just add that we would urge the court to find the section one thirteen deaths three point one a question in this case forfeited not only because the issue was not raised in the p l way allowed by this court but because the interest of administrative convenience which rule supreme court rule three fifteen c three is designed to serve are best served or is best served i should say the interest of the ministry of convenience is best served in this case by finding the issue for food here because the the courts has allowed appeal way and will hear oral arguments probably in november in people versus summers case number one one four zero five four in which the question of  remain and for a one thirteen dash three point one a hearing after the initial ninety day period is the sole issue presented and squarely presented and was properly included in the your honour's in terms of the history of the states jurisprudence inquiries into reasonable this in search and seizure issues have always been a part of search and seizure jurisdiction goes back forever and and that's what we're asking for here is a consideration of reasonableness when a police officer exercises discretion what is discretion making a decision whether to do something or not is it a good idea for me to make this arrest under these circumstances well if we tell the police officers that we're calling it discretion but you can really do whatever you want and it doesn't matter that he's not exercising any discretion and there's nothing going on there's no inquiry at all section one zero seven dish twelve has rendered totally meaningless unless there's some kind of limitation set that goes along with one  twelve then looks like one zero seven dash twelve was overruled itself because basically without a rule that says and a decision to arrest has to be reasonable  then there's no point here and say telling cops they can exercise discretion you're just mean to say do whatever you want it you know i think that the statute then just wouldn't have any meaning at all so for that reason three four four nine people versus lewis he fitzpatrick is taken under advisement his agenda number eight