to the benefit is darkened from a cooperation agreement made by him and his counsel with the police pursuant to this cooperation agreement anthony fully performed gave appellate court ruling that suppression was an inadequate remedy for the wrong that had occurred because anthony is capable of receiving a fair trial we have regarding the protection of due process nevertheless it is clear that the right protects the individual from  there are several important or controlling backs on which we rely on the first of these is that the promise between anthony and the police was made at a time challenge by the state and you either in the appellate court or in this so that there is not the actual question in this case defendant fully performed what what was asked of him and what he promised to do incrimination but it also involved the surrender of other kinds of other liberty interests and they had been primarily in the nature of the performance of the controlled by  anthony participated in ethnic time or a wire and was completely under the control of the police as he performs a controlled deliberate activity that otherwise would be criminal activity so that there is a considerable infraction in surrender of his liberty interest in his performance with with the police that timothy furthermore the the very officer who formed the cooperation agreement with anthony and his counsel initiated the finally of a criminal complaint any warrant yep location again at a time before the record would reflect for all we know that the prosecutor was involved clearly that the initiation of the price of the prosecution in this case was by police action now the record me which is the drug i am which the charges in this case are based in the transaction at which these charges are base but also that he was required to engage in unrelated informant activity is perfectly go back to that this was sanctioned by the police and not the prosecutor is and i understand that's what the record reflects your argument that there's a burden on the prosecutor to indicate that the action taken by the police the agreement taken taken with the police was sanctioned by the prosecutor who have a good case or they have met their burden or well i think that we could have a different case if the records show that for instance the police were engaging in investigation that the prosecutor likewise was involved in it's our position it's my understanding of the law that any determination of a substantive due process violation would be highly act by own and so we need to look at what the facts are and in this case so hypothetically there could be some over arching reason why a prosecutor would be or or the system in general that the state would be justified in ignoring an agreement that had been made between a defendant to have police and charging the defendant a cooperation agreement by the two parties you have the and fully performing and then have the police reaching the agreement and the record being absolutely silent any reason legitimate reason why that would have happened i mean in fairness i wish to say that the state argued in the trial court of the motion to dismiss that after he was supposed to perform other are four that the prosecution and initiated by the state's attorney on its own based upon reports of the file earlier we would have a different case and you would not have an order well i'm not sure i wouldn't have an argument i but it would be a different kates i mean because i think i've tried to establish in the reply brief that there should be nothing construed in my argument that seeks to that the police are deprived of the ability to initiate to report to arrest to initiate price accused by reporting criminal activity or so that would be a different case i'm not prepared to say that there wouldn't be an argument for the defendants in such a case but it's simply not the case before this court and to make their record police excuse me as far as the prosecuting office goes to mean we we simply don't know there's no evidence of that whatsoever if there are no facts it was your motion before the trial court to dismiss that triggered i believe that we respond to this in the reply brief but for instance pursuant to the precedence and hammon it it would be a legitimate viewpoint of framed and issues that would fall into the defense burden of proof when there never was a claim by the state that the promise was not authorized if the authorization filed a motion for reconsideration in this particular case after the dismissal order was entered and even back time i mean they weren't seeking to put and proof of an oven o pleadings and they didn't seek to litigate it done and this basis so that we are left with the situation they had i mean the action is complete and there's nothing to be cooperation agreement is an authorized i understand their argument to be that a cooperation agreement that includes an aspect of a reading not not to bring charges is per se as a matter of law beyond the authority of the police and they act position we submit is untenable  submit that there would be no basis for this court to reverse those presidents or draw away from those precedents and hold that a cooperation agreement of the nature of the one in this case is his per se outside his forty of the police this perko what is your best argument for the authority for enforcement of this agreement schmidt is distinguishable distinguishable because mean i guess i would question whether or not the law enforcement personnel involved i mean in the department i i would from the first district people versus marion which is now hell they had a cooperation agreement a police cooperation agreement is enforceable it's a matter of substan process so but even assuming then that schmidt is distinguishable because of the law enforcement agency that is involved i mean certainly that isn't that would be a difference between the two cases but when we are talking about substantive due process and fundamental fairness we're talking about state action and i believe there is a segment  it is state action then the due process protection is looking at it's not a police dept it's not prosecutor is it action it's it's state action so that when any agency or person is acting and behalf of the state enclosed with the authority of the state that state action so for those reasons  the rules on when a trial judge mr becker what is your argument here because you have changed your argument almost every step of the proceedings first before the  you argued the terms of the agreement and thus conceding there was an agreement and then in your motion to reconsider you argued there was no agreement because the police had no authority to bind you then on appeal to the poll court your argument changed again when you raised the prop the propriety of the rent or the proper propriety of the remedy and argue for the first time the suppression of defendant's statements that are not sufficient so i'm just trying to determine which if this point you have which arguments you've abandoned and which ones you're going to continue with at this point your honor we're arguing that insofar as we're talking about self defendants to cooperate and with promises of prosecution and then the state's attorney will come back and say they want to buy is this you know fair dealing is this in good faith what about equitable grounds public trust but it also talks about the need for the public to be able to trust legitimized are legitimate agents of the state in charge part posses and we know that prosecutors t with his lawyer who is the least preliminarily and he came back to the police station at that time he had family members there was a host of federal postal inspector a sergeant masterson was there and and you don't want to overdo the remedy in this courthouse and again that's not a general callousness and i defend bias it's just that in the balance of i mean when the prosecutor have a lot better opportunity to effect that kind of abhorrent behavior then in a member of the public to be sure prosecutors ha agreement we don't need to address that issue if if we believe that the prosecutor had to be in agreement with the agreement then we're left with the record that we're left with and  justice thomas this question about it was your motion i'm just i was thinking about what that hearing would look like how would the prosecutor who indicated that hey we did not sanction this agreement how would they go back and prove a negative it seems to me you have to help me with that because i can see where the defendant could put a police officer on the stand and say i called the state's attorney and he told me go forward with it but outside of them saying that they didn't sanction it how would they how would we put a burden on them to prove the negative if they didn't well the point is that they have never said that they didn't think should that i mean so that in that regard it's our position that the state argument really is based on something that is entirely with out addressing the alternate question that we have presented on appeal in the alt question that we presented on appeal is whether or not this agreement may have been bargain and they are contrary to what the state is saying there is no evidence of what may be the supposed fairness of the people of the state of illinois in allowing the state to avoid this bar in tool void giving defendant the bat that the sparking this is the state's argument file a civil a remedy but why are we sending the defendant end outside of the criminal justice system when we are faced with a question of this case he was promised that he would not have to face charges and here he is facing charges the state of suggesting that there is some on there in this to the people in the situation i would have to ask what it is that unfairness the state got exactly what they wanted out of the spark and they wanted the higher ups in in in the drug chain they got a higher ups pursuant to the control delivery they got what they were jurisprudence under the state due process law where macaulay talks about fundamental unfairness it talks about arbitrary police conduct and it talks about the fairness the integrity and the honor of the criminal justice system i understand your fairness argument but my you're very statement the state got what it bargained for isn't there the determination made by you and not made by this court to the police can find the state well i am is to what the state loses that if rogue police officers make these kind of deals on their own here presumably we don't really know what the prosecutor may or may not have wanted in the first instance with out knowing that it and without setting up a mechanism that willie is not a mechanism that we have in the one procedure of the state of illinois i mean the police are not if these early stages or in the circumstances presented in this case an agent by starting to act complaint process by pushing information into the realm where the prosecutor becomes aware of it how do we get to where you want us to get to in this case if we say the police but i think that as i understood the question she was asking me whether or not the remedy lies in the civil rights fear as opposed to in this criminal sphere and i  the system to have an honorable system and i would submit that what happened in this case is not i don't recall is fundamentally wrong so why isn't suppression of the statement the appropriate r well i would submit that this that there confuses the concept of procedural due process and the concept of substance to process the fact that the defendant may be able to receive a trial that comports with perceive due process does not mean that he has that they have trial itself is not violent two of substantive due process because it is fundamentally unfair for these charges to h first and i think that it's a basic failure to recognize the difference between procedural due process and substantive due process when we stayed that suppression is an adequate remedy anthony gave to the police in terms of wearing the way or enjoying the control but the state seems to put no well the state clearly puts no weight and this whatsoever and says that it's simply not an interest involved in the certainly a conviction based on unfair trial would be an imposition on liberty interest you just cause the liberty interest to say here was the fact that he was wearing a white i think what case you have that tells us that that is a i believe they have a language in those cases that they have in forced co op police cooperation agreements or in those cases that have recognized the exception what they call an exception for enforcement of a police cooperation agreement that that those cases often enough or most often involve this kind of informant activity that is