the st degree murder well it was in connection with the shooting outside of the club apollo in peoria illinois mr hartman's conviction was based solely upon circumstantial evidence there was not one witness who identified hartmann as the shooter he did not admit to shooting the victim and there is no physical evidence actually connecting mr hartman to the shooting and mr martin was also convicted of unlawful possession of a weapon by a felon the state confessed error on that issue based on aguilar and so will rest on our brief on and that issue we did raise several issues in our brief but today i want to focus on the issue of probable cause for arrest and i will of course try to answer any questions that your honour's have but i knew the other issues in our briefs so the police did not have probable cause hardiman and the fruits of that illegal arrest namely mr hardman statement that he was present at the scene in a specific car at the time of the shooting should have been suppressed in this case the police issued a so called forty nine message which is an internal police finding of probable cause for arrest they did not get him warrant and they police did not have probable cause here because the information provided by mr driver regarding what happened the night of the shooting was demonstrably false based on all the other evidence that the police had gathered during their information what was known to them prior to their interview of mr driver so prior to mr hartman's warrantless arrest the police had three sources of information in their investigation one the evidence that was gathered and the statements that were taken at the scene of the crime immediately after the shooting two surveillance video from the scene of the crime and three  at the police station statements a gentleman named anthony carter and the d c driver who they were interviewed was several hours after the shooting on the morning of february th at the police station so from the scene the police learned that an anonymous person gave a security guard a scrap of paper that had a vehicle make model and license plate number was a missing b she had clips that they described as a black to be she eclipse that person allegedly told the security guard who then told the police that the shooters that that that was the shooter's vehicle the mitsubishi eclipse and it was parked on the street near the club the police also learned that there were shell casings in the parking lot of the club and bullet holes in the building of the club that showed that the shooter must have fired from the area of the parking lot toward the club and toward the victim they learned that there were seventeen shell casings recovered and shortly after the shooting still at the  scene security guard named early johnson told the police that the victim had been in an argument earlier in the evening with a person that he only described as an african american male who was dark complected mr johnson told the police that after the argument he escorted both of the parties out of the club from the surveillance video the police learned that the shooter exited a dark colored vehicle that was parked far into the parking lot at the club minutes later the shooter stood in the parking lot and shot to ward the building is the video clearly shows that the shooter's arm was stretched  extended while shooting and then after the shooting the shooter walked back to a vehicle and got in the passenger side and left the parking lot now hours later at the police station  police interviewed it made him anthony carter the police learned that carter was in fact the owner of the black which to be she eclipse identified by the anonymous person on scrap of paper and also that on the day of the shooting carter had loaned his vehicle to t c driver so at this point there is absolutely zero information that mr hardiman was even present at the scene but then the police interview t c driver driver told police that he walked in to the bathroom walked in on an argument between hardiman and hartwell the victim and that after the argument they sort of went their separate ways hardiman went to the dance floor driver went to the bar hartwell went somewhere he didn't know where he didn't see him and then they stay honest hardiman and her well stayed in the club for some time until closing time and then they left the club now this was a complete contradiction of mr johnson statement to the police that there was an altercation in the bathroom he broke it up and he asked one of the every all the par that correct that is correct and then when you can escort them out together or did he well so the record is a bit unclear about the timing he testified that he lost track of mr  then found him again that he lost track of the man that was involved in the argument in the bathroom and he ordered to mr hart and then out but not maintain eye contact with the man that argued in the bathroom until the told police that there was an argument the back bathroom and that afterward he escorted the parties out ok thank you so actor after the right outside the front door and hartman just pulled out a gun and shot her while twice now from the surveillance video the police knew that the shooter was in a car accident the more shots and he was asked about this several times during his interview when that's very clear that's what he that's what he heard and the police knew that there were significantly more shots than that there were seventeen at least seventeen sho fired perhaps a minor point but i would submit not driver told the police that the shooter just sort of casually raised his arm and shot mr hartwell and the police again questioned him several know wasn't sure that he the shooter held his arm extended it fully while he was shooting and mr mr driver insisted that no he did not and we know that that's not true surveillance video and critically it driver told police that he was very specific he went through the whole scenario he told the police that he walked out the front door he was standing next to hardiman which is back to the wall of the club and he sort of demonstrated for the police and heard of men was shooting from that vantage point so according to driver it was right outside the front door of the shooting and the shots were going away from the club so if that were the case you would expect to find shell casings and things right there at that spot right outside the front door and perhaps bullet holes in vehicles or something toward the parking lot but the police new because opposition is on the scene right after the shooting found the shell casings in the parking lot you know where where the shooter was as seen on the surveillance video they found shell casings in the parking lot and they found the victim shot who was standing toward the club right outside the club and also bullet holes in the building so the police knew at that time that the shooter approached the parking lot or perhaps the building from the parking lot searching toward the building not the way that driver explained what he claims happened well his driver's where was driver's car it was according to driver it was in the parking lot at the far back into the parking lot so so we have a car in the was a vehicle identified driver said that he if he was driving the vehicle according to driver heard and was with him but then the actual the the story of how th near the front door they were only in the parking lot and they had already collected that information right from the video footage and from other interviews that they connected right at the scene well yes from the video footage and also from the physical evidence you know the police through there collecting that you know marking the shell casings and looking at the building and so they knew they knew where you know based on their experience i'm sure as as investigators they knew that that was evidence that the shooter was standing in the parking lot not right outside of the front door of the club like mr driver you know gave great detail that he was right outside the front door  so they knew that driver story about what actually happened was not true it was not supported by any of the other evidence that the police a gathered at th shooting is driver correct ironically driver was the driver of the getaway car correct according to driver yes though how do you have probable cause based on an identification by a co defendant or an accomplice isn't that inherently suspect i believe that it is you know we of course don't know mr driver motivations but i would submit that he had a great motivation to sort of shift blame to someone else i have one more housekeeping you notation on page five of your brief you talk about the stipulation me get back that your client was arrested and february th two thousand and eleven and then on page johnson's identification by photo and i don't know if it was photo lineup or a single photo was on the th and thank you yes i restore hardiman was arrested on february th in the early morning hours i believe it was around seven o'clock in the morning of february i do not know whether or not the photographic why not was was indeed multiple photo lineup or single photo the record is my name is nicholas i would have represent the people of the state of illinois in this matter as one housekeeping issue before i begin in august defendant supplemented the record with the exhibit donna of t c drivers interview we actually never received that d v d apparently the court transferred that directly to the justices and so i'd like to ask the court for leave to review that d v d and to file a response in writing after the oral argument is completed the person by motion request now yeah we just discovered that we didn't have the d v d during the holiday and we confirmed with the court on monday that it had been sent to the justices chambers i will write that up if you would like  lot of references to driver's statements and what we know about the probable cause the police responded to the scene after the shooting security guard early johnson spoke to the officers and he informed them about an  altercation that had occurred the officers also spoke to another security guard who informed them that there and been a witness to the vehicle that left the scene the black mitsubishi eclipse that vehicle was identified in that witness it also provided a license individual that nd individual one driver came in to speak with the police car brought driver with him to be interviewed at the station driver informed police that defendant is actually skew at that time and this is approximately twenty four to thirty six hours after the shooting driver said defendant was with him at the club defendant had an altercation in the bathroom of the club and the defendant was the individual who shot the victim in this case we know that the old occasion occurred because early johnson after the arrest but before the arrest the officers were aware the crime they were they had a trail of bread crumbs if you will to anthony carter who led them to driver who stated that he was there with the defendant and the defendant was the shooter has or he stated to the police that during the year the altar cation it occurred between the two and early johnson spoke about another individual who was in there which we presume is driver in the club bathroom johnson stated that this individual was trying to calm down the agitated individual who he later found out was defendant and so what we know from that information is that defendant had a motivation to shoot harwell he in fact said when he got kicked out of the club that  the in the bathroom the bathroom just provides the motivation for why there was a shooting in the st place it places the defendant at the scene because johnson identifying the defendant later and it shows what happened there starts off   with regard to the shell casings that defense counsel mention she makes a important point about well it doesn't there were some bullet marks on the wall there were shell casings in the parking lot but if you look at exhibit page twenty five there are parking there are shell casings on the parking lot but there are also a shell casings within a one or two feet of the front and side door of the establishment you can see the yellow markers clearly there in the snow another thing that council had referenced was  fact that driver saw the defendant point the gun a certain way all we know from what driver statement was initially to the police is that he saw the defendant fired two shots then he turned around and walked away and heard additional shots we know ray mentioned we don't know they didn't state that the defendant shot the victim inside the front door we just know it happened in the vicinity of the front door and based on what we saw the defendants or the victim's resting place was outside the front door in a fetal position so it's not as if this the shooting happened inside the doorway of the club it's apparent that barwell exit in the club and was then fired upon after he exit the front door and shooting allegedly by the shell  casings at the crime scene were found going towards the parking lot in my correct found in the parking lot they were found in the parking lot and they were found in the vicinity of the front and side door i'm not sure the order in which those shots were fired if they were further away and got closer they were closer and moved further away though nobody in ballistics will tell you that but there is a trail so that one hypothetical is that shots were fired as  that the image that is being given to the place by the testimony of driver driver stated there was an initial couple of shots fired and then there were additional shots that were fired so we can lyall's later testify that there were a number of shots fired essentially until the gun ran out of ammunition so we did know there was a st volley and then a subsequent volley but it's it's also possible the driver didn't hear how many total shots were fired because as he stated the police he walked back to the vehicle and got inside the vehicle and started the car shortly thereafter we see that if the individual in the parking lot walking past liles his vehicle and entering the passenger side one thing that one i don't mean to be disrespectful but why isn't it equally plausible that that that driver was the shooter based on the information that we had he had no motivation to do the shooting as i mentioned johnson stated the other individual the bathroom was trying to calm agitated individual down and he identified that person as driver he did not identify that individual that driver placed himself there in the bathroom with the defendant i have a question about the forty nine message it relying on the message i don't recall his specific involvement i know officer moore was was primarily involved investigation but there were a number of officers collecting that information however you know that as the case i would say all the officers knowledge is imputed to one another so he's acting on the collective knowledge of all the officers when he makes that arrest well that body night message in peoria how many ins a message indicating that the person is wanted for questioning only isn't isn't that your i believe the testimony from moore was that it was a probable cause message but i'm not certain what the extent of that would be but he even if he is even if that message is it's just an administrative function that message in of itself carries no weight the only thing that matters is the evidence that the police know prior to the issuance of that alert it's really no different than a be on the lookout message they just know that there is an individual whose attenti wanted for a crime and our whole position has been that there was sufficient probable cause leading up to the arrest to support that or that and what the nine message indicates that somebody is wanted for questioning but you don't need probable cause to question do you know you do not so you want to have last look backwards now and what mr bad a minute to adam and new but look backwards at that point in time where the investigation was in order to determine whether there was probable cause that is correct that's what the case law allows for the case law allows all the collective knowledge of those officers to be imputed to one another in order to  why are those cases even relevant well those cases were raised by defense counsel i would argue initially that they're not relevant because the basque ace for example which is currently before the supreme court that case was sort of the issue by the justice in the st district it was an issue that was briefed by either of the parties the justices wanted to hear argument on the issue of the probable cause alert the forty nine alert and determined whether or not that was constitutional not under the u s constitution but under the illinois constitution you've asked us to hold off rendering a decision until the bass case is decided by our supreme court are the message just received probable cause like message that is utilized in the state and when i look at the description of what a forty nine dollars messages i think there's a difference forty nine dollars messages only be on the lookout for somebody is wanted for questioning so i'm not sure i'd like you to discuss why we should hold off deciding this case until bass has decided because i don't think that the messages that office are bad i'm an actor that is the same type of message that the  only when you are seeking a warrant do you need to have it supported by affidavit or all will cause has always been allowed by statute and under the common law and counsel relied on two cases the u s supreme court case was  palmer v new york as well as an illinois supreme court case people white in her reply brief that relied on palmer and stated that you know these you know you must have accident circumstances in order to go into the home and arrest individual but those cases were both you can go into a person's house arrest them if you have probable cause and as long as the statements made by that individual occur not inside the residence but elsewhere such as the police station which was the facts in harris that evidence is allowable as long as you have probable cause so it also only goes back to a probable cause determination not necessarily a constitutional issue so you don't have you dance at my question in your  opinion because as you know if you can decide a case on a non cause situational issue you're encouraged to do so and i hope position is that there was sufficient probable cause there were as a trail of breadcrumbs and while there may be one or two facts here or there that you know may appear contradictory or maybe just confused in the manner in which they were presented as far as an officer relying on a statement that another individual made when he is report during the suppression hearing even though those things occur that the rule is not every fact has to be proven beyond a reasonable doubt you only have to have a sufficient condition of reliability and all that requires is that a substantial amount of the facts have been corroborated it may have briefly conclude what it is as far as the illinois i believe are there any other cases from our rd district to slur originated in the rd district that address this forty nine message or probable cause a rising from the forty nine message as i recall there were a number of cases that referenced these types of investigative alerts i do not know if our court has issued any decision on the merits other than simply mentioning what the facts of this case counsel indicated that this was a be on the lookout kind of message and that is contradicted by the record detective moore said that this was based on probable cause that they issued a forty nine message based on crime because and i would submit to the court that if this were in fact they be on the lookout kind of message then the officers would not the state stipulated to that believe that the probable cause hearing and they went into her house look at mr hartman arrested him and took him to the police station for interrogation you know so this was not just  to arrest him well i i mean i guess in effect i'm saying both i am saying that the you know i agree with the bass court that this kind of circumvention of the work requirement is unconstitutional but in this case the totality of the circumstances the totality of the evidence that was known to police at the time that they issued the forty one message and went to mr evans home and arrested mr  was not sufficient for a finding of probable cause and you know there were twenty four hours in between the time that mr driver think approximately twenty four hours and between the time that mr driver made his statement to police and the time that the police went in arrested mr hardiman i submit that was plenty of time if the police believed that they had probable cause to arrest they could have and should have gone to a judge and requested an arrest warrant they did not do that and again we submit that is because they knew that they did not have sufficient probable cause for arrest mr hartman and just and you know sort of the significance of that and i think i mean that the testimony on that point and that sort of goes to one of the issues that we raised about ineffective assistance for not cross examining early johnson and his initial identification of the person in the bathroom that that information is critical it is it is the only thing that in any way suggests that mr hardman had something to do with the shooting in terms of the evidence