and issue number four where in the ledge that counsel was infected for failing to prevent this trial which should have been a credibility contest on a gun possession charge from devolving into a trial about gang evidence which included the testimony that allowed the jury to comes time to prove that there was probable cause to make that or that arrest in court the state must present someone with first hand knowledge of facts supporting the original information but would usually be the officer who wrote what in this case they made an arrest did a custodial search and testified that they found the weapon the state never presented the author of the original investigatable or unknown officer who wrote thriller and an unidentified time we don't know anything about that investigator where the facts underneath the state manifestly failed to meet its burden here the trial court however found that the state had satisfied its burden and the court was simply wrong this court based on the immediately arrested they in testify that they arrested hyland they cuffed him and they searched him they did a quote custodial search there was no doubt as to what the officers testified to i would contrast that with the discourse recent decision in wells where in under similar facts the officers did said that said they were doing a terry stop to testify there during a terry stop did indeed have protective pat down when they immediately stopped c and searched the defendant but this court recently held under those very similar facts the state was required to show probable cause to justify the search during the hearing on who t under similar circumstances where the state could even where the state prevails in the trial court a motion to suppress where they hadn't argued terri in the trial court the supreme court refused to hear the merits of the state's theory argument and under under that cause because they didn't offer any of the underlying facts and only facts and what the what the police saw when they showed up was mere flight and as we know mere flight does not support a reasonable suspicion that is they are there was something in motion indicates that the court relied specifically on the investigative where to say there was probable cause the court stated that what she heard about the investigator was sufficient to establish probable cause and you can see that she felt what she was sufficient by the way she handled mr mcgovern riza co defendants motion to suppress she ultimately granted mr mchenry's motion to suppress and the only factual difference between the two cases was that mr haven't had the investigative  she found what she heard about the investigate her to be sufficient the law says she was wrong about that and this course is simply reversed on the merits if you know for the questions about issue one i'd like to move on to issue four wherein counsel completely failed to protect his client from allowing this court this case to become a trial about getting evidence before trial the state charge mr hyland with nine counts of illegally possessing the gun after the motion to suppress was denied immediately before the jury trial the state dropped all but two of those charges the most serious charge the u w felony charge which now be the only charge on the miss and one of the charge unlawful possession by a gang member we're not saying the state wasn't allowed to prove up that charge they are allowed to present evidence of gang membership as required by the statute but but but the prejudice of counsel's failure to file a motion to sever is manifest in this record nearly half the state's case in chief was testimony it was gang evidence and it was the most dramatic testimony after sledge qualified  expert state called him down into the road to court in front of the jury had him go through photo after photo of mr hines tattoos talking about what they mean and what faction he belongs to members fellow gang members was killed and if they're filled in it means he was the individual who did retribution for that killing in other words with the ambiguity of the photograph and never never clean up whether it took tattoos were filled in or not the  infer that mr got away with murder there's no more prejudicial evidence than that just particularly in what should have been a straight up credibility contest between three officers and the two defense witnesses about whether mr howland illegally possess the gun it's hard to imagine more prejudicial evidence than that and on top of that the state fully exploited that evidence in closing argument they not only argued that they had proven a gang member element they argued that mr huhne was less credible because he was a proud gang member because gang members do things in barbershops because and i would just add on top of that they argued that the police officers more were more credible merely because they were police officers which the only supreme court has recently declared to be improper in the other items case cited every step of the way counsel failed to ensure mr howe was right to a fair trial in failed to prevent this case from devolving into a trial by  evidence when it should have been a straight up credibility contest he should have filed a motion to sever he should have objected to all of this prejudicial gang evidence particularly about the alleged in charge murder he should have filed a motion to strike a motion for mistrial maybe as a court with respect to the first issue it's really important right off the bat to get defended keep saying that we have the burden and that is absolutely correct under the law and i want to go through the law today because the law if you just apply the law in this so i want to make that very clear there is a burden of production that shifts after after the defendant establishes prima fascia case that there's a warrantless arrest i agree with you that there's a burden of production that sense the sense defendant forfeited his challenge never never contested be basis for the investigative work in this case the people simply put forward that there was an investigative alert for this defendant they established  a binding case on all fours with this issue it's called people versus king i cited it in my brief it's exactly the same case the defendant litigated of pretrial motion to quash in that case failed to challenge the basis underlying stop order just like defendant didn't this case in the supreme court still found that the issue is forfeit it didn't matter that he raised it that he raised a pretrial motion to suppress didn't matter that he filed a post trial motion he had to raise this particular substantive issue fail to do it under people versus king this court is bound by illinois supreme court precedent i submit the defendant fully forfeited this issue understates that's completely binding on this  that this defendant is wanted either for questioning or for arrest there there are different types of investigative alerts this particular type of investigative alert was one for arrest so that the police officers detectives had entered into the system that this particular defendant was to be arrested in this case the general order i believe suggested there was an investigative alert with probable cause exact s k to alert without problem right justify the police action in this case but it would not i would not suggest this court that in and of itself in this particular case just the mere fact that there was an investigative alert out for the defendant in and of itself would not justify either terry arrest but there's a lot more circumstances in this case and that's that's what this court needs to look at that the investigative alert with probable cause does not suggest that the person should be arrested it does to the police officers and they're acting they're acting under police regulation they pay their fellow officers have indicated they're in as suspect needs to be arrested so they're acting with within the regulations of the chicago police department is there any statutory provision for issuance of an investigative work i'm trying to think beyond the general provisions whitely case and i think it's well we'll look at that in terms of this particular investigative alert what separates this case from a case like whitely in whitely the police all they have to go on is something like an investigative alert or a police ful that somebody is wanted for arrest that's the sum total of the evidence they pick up that the defendant nothing is ever introduced regarding probable cause underlying bet investigative alert and in whitely says that under those unpaid record page one fifty four defendant is asked a straight up question what was the violation of the order protection for what was the work protection for straight up he answers it was a domestic dispute a few pages later on page one fifty seven he says i told the guys in the barbershop that i didn't make that phone call violate your protection so defending himself on this record has acknowledged the existence of a domestic dispute underlying be investigated alert any in this instance at least one of the officers had prior dealings with with the defendant that's  and in a situation where there is an investigative alert with probable cause to make the probable cause determination i believe that that that's a determination is made by a detective or police officer who who decides whether they have sufficient information either they're justified arrest for this particular individual or maybe they don't have sufficient information so they're asking a fellow officers maybe to to further investigate or bring the suspect in for questioning but to stop this person whenever and wherever located take that person to the issuing investigative officer that correct  what does this sound like the where person is taken off the street and taken to some police office where the day in circumstances that you can be an arrest that the investigative alert without probable cause according to the train button suggests that the responding police officer advised the subject you are the subject of an investigative alert and you should voluntarily go to a police the investigating police officer that correct it's an indication by the police that they themselves recognize they don't have sufficient evidence to justify an arrest in that particular case so there's some further investigation that needs to take place i don't know that they would necessarily mean that they should tip off the suspect that they're that they're the subject of an investigation but some further some further evidence has to take place before or has to be received before that the police feel that they have sufficient probable cause  a warrantless arrest in that case when an investigative alert either with or without probable cause is issued one is the tenure of that alert is there an expiration etc i believe it's there's usually a branch is there a reason why the investigating officer would not ask for a finding of probable cause by again i think it all depends on various circumstances i think it in certain circumstances where it's very cut and dried the officers are not going to let your peach what's cut and run there's first of all there's there's clear probable cause there the the fact of going before a judge getting a warrant is not going to endanger another investigation how about complying with the law would he do that bit but not it wouldn't necessarily not comply with the law to effectually i mean warrantless arrests are permissible under the constitution no those are exceptions there are exceptions but i submit the bed exceptions are met in this yes your honor in any case it ends not all the normal course of the parts put it this way in the normal course of events yes but also they are there are a vast number of exceptions to the war goes back to the forfeiture issue this issue wasn't litigated and all had been litigated below we'd have full a lot more facts to to address some of the the things that you're bringing off and it's not crucial that they will go to work if there are with probable cause and they proceed at their own peril let's let's take him out of the equation let's assume this was forfeited in your view in the lower court if the defendant in this case brings this motion would you agree that it would then be incumbent upon the state to produce the officer who had personal knowledge of the underlying facts that gave rise to the investigative awards not almost to the defendant as it is charged with framing the illegality of raising the issue in your in your scenario if the defendant had done that if he had raised in his written motion that he was attacking the the basis for the investigative alertness case absolutely no doubt about what he'd done in the sense that he says i was arrested without probable cause he calls  probably in light of king in lawson that the issue was litigated in that particular in that particular setting and because it was litigated well it was that the defendant call the arresting officer and rested and the state offered no evidence in that the court in lawson's that the state hit obligation the state had a burden to advance the evidence that provided the personal knowledge of the underlying information that gave rise to the investigative alert or in this case lost in the bulletin oh with respect was was the nature of the written motion that for the the motion to quash rest in that case i submit that it probably raised the issue or at least challenge the that particular well you're right i don't think we can get around kink i think the what could what this court needs to do is address because it's forfeited whether there was ineffective since the counsel for not litigating this issue on the part of defense counsel and then looking at whether whether this this met you the prong or both problems of the strickland test in this particular case and then if that would be a way to examines at least some of these issues and don't you know again i'm not familiar with lawson i'm not sure if that's how they approached it in that particular case maybe it was plain air ob maybe the party simply failed to to raise the issue forfeiture in that case you know it's something that can happen there is a burden on the prosecution to raise the issue forfeiture that was raised by the prosecution in that case your supreme court has said that the state can waive the issue of forfeiture so i'd say that i submit that it sounds like that that's that's exactly the the first of all there's a again i'm going to ask you to apply the law very carefully defendant misstated adams to you you just flat out misstated ads and i want to make this very clear the people were not the prevailing party state where the apple lot and that made all the difference in the world and there is a page number i want to direct you to the specially in adams if i can just find it it's page three ninety five in the in the adams decisions the sylmar spring court again remembering that the people were the apple lot that he lost in the appellate court they failed to advance the argument that they were raising before the illinois supreme court they failed to raise time that the prosecution raised the issue next case was in their reply brief and it was a motion to strike that issue from the reply brief the western court took that with the case and decided in in the defendant's favor because the prosecution waited until the reply brief to raise that issue moreover an enemy of the court cited said there was another case that was instructive nec case was called o'neill well guess what you know neal the people are the apple lot before the illinois can look at the record of the trial itself to justify the truck or its ruling at the motion at the trial itself we had a police officer officer sledge who was attached the officer he testified based on his experience both as a chicago police officer and his a sheriff's felice officer many years on the street many years dealing with particular gangs he identified a particular gang that was operating on this particular street on seventy first street he said it was the the seventies babys faction of the gangsters this was a high crime area in in officer sludge is testimony regarding the gang control nature of this particular block in addition defense counsel of self at the motion of washington seated that this was a high crime area and on top of that there had been a robbery that took place that at this very this very establishment whatever we're going to call it whether it's an unlicensed barbershop whatever whatever the nature of this establishment is there's been a a robbery within within the past few weeks at this particular place so there's only the kind of cases the defendant cited to you there is there is actually substantiated testimony by a police officer based on his experience with that neighborhood if this is a high crime area this is not the case defense had a case where police officer just answer answered was one question was given a loaded question a loaded question about well this is a high crime area yes and nothing further was put into the record about establishing the individual or anyone acting strangely or in a manner consistent with criminal activity they went there specifically with an intent to act on an investigative alert to arrest this individual right partially but there's there's more to it in than a solo individual all cases the defense side you are single individual flying fleeing from the scene it's not what you have here it is eminently more dangerous when there are multiple defendants in the case they both flee in this case they both run into this establishment and they're both trapped they can't get they can't get past the the back door leading to alley or whatever it is and they're corner now under these circumstances and there's additional circumstances and that's why we have an investigative alert what do we know about this investigative alert we know the defendant himself isn't now acknowledge that there's an order of protection against him that there was a domestic dispute at the heart of that this is after after he's confronted not not before officers pursued the defendant certainly could not have conceded anything at that point he had not even been confronted by the police well the fact of the matter is though that whether it's before or after the fact that there came a trial oh well  what the defendant says after he's taken into custody has no bearing on isn't this a problem right here in this particular case where where the claim is that this this is the information underlyin is is the investigate alert that's that's a chunk of this the investigate alert and where the where they there's a question about the validity of that investigate alert the fact that the fan a trial acknowledges facts underlying that investigative alert is relevant and does go to the validity of that investigative alert now i'm i'm arguing here that there's more there's a lot more to this case than just an investigative alert there's a lot more to it that then defendant supported your honor without without somebody is is some of these cases of layout with somebody without somebody coming in and testifying providing a basis for it being in a high crime area i would say just the fact that a few incidents have taken place criminal act that the record supports you know with respect that's that's not the case because the put the police officer officer sledge testified that this particular block is controlled by the extra disciples that there's gang activity going on there so with respect there's more to it than simply there was there was a robbery there and as i said defense council itself conceded that this was a high crime area this wasn't this wasn't an issue that was subject to litigation both the flight the flight plus the high crime area is more than sufficient to justify a stop other war though now we have to get to the furthest that right and these are the factors that i was bringing up before the fact that there's multiple defendants the fact that they're corner they're trapped in a situation they've already fled from the police that indicates that they're not willing to cooperate with the police i think it's helpful to look at to two suspects and for police officers well police officers that are running through a door probably single file suspicion that these individuals are or the defendant is that at least armed and dangerous so that his safety of the safety of others it is if it's the sort of factors that i was that bit them that describing to you the fact that it's more than one the fact that they that they immediately flee the fact that they're trapped in corners and and now suddenly who knows what they're going to do under these particular circumstances the fact that the fan it has a violation of an order protection or protection for they're in a situation where it's highly dangerous and it's all taking place very quickly these are the sort of commonsense considerations that that both the united states supreme court the only supreme court ask you to draw in terms of drawing the balance between a poll in the constitution and protecting officer safety for the purpose of record can we agree that we're two suspects not multiple two ok well two is more than one good well i mean since we know it was two two ok there's two no question but there's more than one and that and that's my point you in all the cases the defendant cited and i want to go through something these two of these cases on in the thomas case but that's a completely different case and that doesn't that doesn't help elucidate this issue at all fact it actually helps make my argument in the thomas case b defendant was merely a passenger in a garden variety traffic stop any flood well in apparently was a high crime area but that's it a passenger in a traffic stop police well that certainly suspicious in the thomas court said that justified a wardlow style of a terry stop in their case but that's all there was there wasn't multiple defendants fleeing together there were two defendants playing together there weren't a situation where they were they became trapped in a corner and the officers also had information that one of those one of those two people had an order protection against them for domestic violence stolen property that in and of itself was sufficient to justify not just a stop under gerry but a frisk i submit to you that the factors that i put before you are more than sufficient in light in light of these cases and especially in contrast to the kind of cases the defendant cited where somebody is merely present in a high crime area where you may have mere flight or something on on an order in fact in the wells case there wasn't even flight there was nothing that would put a reasonably prudent person in that  position to justify a belief that he or people around him were in danger in those cases in this case it's a lot different we have a defendant who's a member of a of a street gang particular street gang that controls that area he he has a domestic violence in the record the whole basis you know it depends you have to look at the fact that he's a gang member in a gang gang controlled area and in addition to that he has this sort of protection against them the two things working together a little bit different than any in the either one of those things all by themselves you know in the work case i say to cite it to you there really wasn't much different evidence to go on and that justified a reasonable suspicion of a case in the work case that was simply information that the harvey police wanted suspect for questioning even less than in this case there was an indication that there was a probable cause investigative alert there was even less in that case this that he was wanted for questioning that plus flights in  this is clearly a case where the need to protect police officers and in this particular situation especially facets to ation fast developing situation like this the need to protect the police officers justifies the police action in this case and i do want to make a quick point because i myself am in a little doubt about what the record states about the nature of handcuffing now defendant sites to record pages j sixty five and sixty six i looked over my notes of my abstract of the record i don't see anywhere in there that the officer actually said that he handcuffed the the suspect that's what that's what they allege but my recollection and my review of my notes didn't indicate that so i'm just just to close out this issue i would say that if your honour's are in serious disagreement with me with respect to whether terri justify based on that based on the status of this record then the appropriate remedy in this case because cannot see your way from clear defining with me that this should be that this court should be affirmed that there was sufficient at least and if not terri probable cause in this case if you can't find a way to agree with me then and you don't agree with me or we don't agree with you or r c l's no it's only if you don't agree with me because if you were to agree with me it with that then defend it can't possibly meet the second prong of strickland he can't show reasonable probability of a different result and therefore you can argue the first prong whether or not counsel was competent for choosing the particular stat strategy that he chose or not but if you can establish the second prong a reasonable probability of a different result then there's no ineffective  counsel here is only in effect this of the council if you disagree with me you say there would have been or there there's a reasonable probability of a different result in this case  with briefly with respect to the second issue that found it raised i just want to point out that first of all there's a statute that that particularly governs when when multiple fences are based on the same act there's illinois law that governs this it's compulsory jointer i regret that i didn't i didn't cite this particular stage in my brief my opponent didn't either but it is it is the governing require a severance even though it be offenses are both based on the same physical act and of course there's no dispute before your honor's that the two crimes in this case the two offenses are based on the same physical act in fact i conceded  this case doesn't justify again doesn't justify a finding on either prong stricklin in this case i cited a number of cases to you where different differing charges were married to each other different different incidents were married to each other in the same trial sums many of them involving murders which defendant wedges was possible in this case he says well they could infer that well there's a lot there's a problem of with the fence whole inference argument and that is the in this case it's not can be both so the only question then is whether this much smaller teardrop is closer to the eyes filled in or not well there's certainly no evidence to establish that it was filled in noise or testified that it was no one testified the defendant had retaliated or in gauged in some some other gang activity against shooting against rival gang members none of that was was in the record in this case none of that was presented to the trial fact in this case so therefore  not possibly stabs in fact since council on that particular issue and he briefly also touched on the adams issue where the police where the prosecution at the close of the case made one particular comment about the police officers were to be believed they wouldn't put their careers on the line in order to frame a defendant now the state of the law at that particular time allowed for just that sort of argument and that's probably why defense counsel didn't object at that point so it's clearly waves so the only issue then is whether it was ineffective since the counsel not to raise an issue bad up to that point was a law in the state i recognize that romney sided two strands of cases ronnie's a decision that came down fourteen months after the trial in this case so it's a rule it's established well after the fact of this trial really could've been much help to the prosecutor and to the defense attorney trying this case and certainly under in effect since the counsel defense counsels are expected to be clairvoyant but i just want to make sure that if you look at both of those cases the two strands that are cited to me in romney at the important point to be made here is that the rule was that if the defense not put on a defense of police frame then that argument was absolutely improper however in the case where the defense did put on a defense a police frame that was that was a proper argument that was the rule up to that point and that's what the cases right it's just a couple of points on issue four and then i'll address the issue one the adam's case made it clear that the law by collecting the cases reversing on the kind of coming to see from the prosecutor closing argument here that this was a long illinois and it is now but that's only one thing that happened here considering how the state exploited all of the king evidence in closing argument it was basically line of cases says that charges even based on the same physical act can and should be severed when the evidence said to one of those charges just so prejudicial that it infects the trial on the other charge there's no question that the judge would have used her discretion in fielding so counseled out the jury to wonder whether highland may have gotten away with a murder that is completely complete ineffectiveness and in this what should have been a straight acrylic credibility contest mr hamlin should get a new trial where the officer right relies information from the other officer the state must present that other officer very straightforward the state failed to do that here trial court found he had insufficient trial court was wrong this court can and should reverse mr holmes conviction on the i'm going to whether there was reasonable suspicion to frisk mr hyland the well's case i would point this court to the wells did earlier in johnson in wells there was a report of the domestic harassment with a possible threats even in light of the bat this court recently held that you had to have probable cause to cuff and search the defendant my notes indicate in my brief indicates that mr howland was cuffed before he was searched and i believe he was and i apologize if i'm incorrect about that however there's no doubt the officers said here that they arrested and did a custodial search that requires probable cause and wells indicates that as far as the flight the johnson case is similar as well passenger gets out after a legitimate traffic stop runs away in a high crime area