challenge to that court based on the trial court surprise partial suppression of a statement that defendant made to a fellow gang member in a police interview room the defendant actually made two statements he made one on july thirty first two thousand  and he made a second one on august sixth two thousand and two in the trial court suppressed only a portion of the july thirty first statement suppressed the portion after the arrival of counsel at the police station and it suppressed that on my colleague round the rest of the july thirty first and the pre concert portion and the august sixth statement it's an entire day we're not suppressed by the trial court so i want to first discuss the jurisdictional parameters of the  court to reverse this portion of the appellate court decision outright based on these six  i'll focus remainder of my argument on this post counts a portion of the july thirty first statement that defendant made now our biggest complaint with respect to how the appellate court reviewed this is just exactly that how it it reviewed the trial court suppressed this statement on fifth amendment mccauley base grounds these are the grounds defend that raised the grounds the parties litigated and the grounds of the trial court amendment grounds not only were these grounds never raised by defendant in the trial court but they were now for litigated in the trial court and to make matters worse they weren't even litigated in  court your honors one c appellate court came down with this decision and we realized that it was based on these new sad story construction fourth amendment grounds we immediately sought rehearing on that and we were rebuffed by the so we at least tried to get the probable cause evidence before the appellate court in a motion to supplement again we were rebuffed by that court this isn't your honor some want to make clear this isn't really a question of procedural to fault as this defendant never raised these claims the appellate court raises claims on its own nor are we taking issue or contesting at all the principle that a suppression order can be sustained by reviewing court on any ground of record we understand that that particular rule of appellate review respects the role of the reviewing court as i would to correct results not correct reasoning what we do contest in this case is the violation of the built in fairness limitations of the appellate review process itself if the new grounds unjustly deprive a litigant of an opportunity to present proof or argument then the adversarial process and the system of appellate review itself is weakened and brought into disrepute and that's exactly what happened in this case the reality of this case your honor says that there's so much probable cause on this defendant defendant himself didn't even contest below he had three of his co co defendants identify him as the shooter himself made an earlier admission to michael davis while they are awaiting transport in the bullpen and in that admission you just scribe that he used an assault rifle as the as a weapon the police then found the same assault rifle the same type of gone in a yard a half block away from the crime scene their entirety this it should not do with viewing courts should review not write on a clean slate and forever tie the hands of the  existing proof an argument that would actually refute the new theory that the appellate court raises  this construction of the county jail act issue i would i would ask for that i would agree with your honor the problem is this particular issue with respect to the fourth amendment based rulings ye two sections of the county jail have to be in conflict and felt they needed to be harmonize section four and that can be found on page fifty six of the appendix in our opening briefs is the commitment discharge provision that provides that the sheriff shall receive in confined persons committed to his jail until they are discharged by due course of law and section nineteen point five the jail protocol provision and that's on page seventy of our panics permits the sheriff implement a policy that permits release of detainees to law enforcement for investigations on unrelated charges and the appellate court and the found an offer two different rationales in support of the appellate court's construction  impulse look to this court's decision and people we can and from that decision that determined that the release envisioned by the legislature in the jail protocol provision interfere with the bell court's authority next actually supports the opposite conclusion the use of the jail protocol provision does not interfere with bail the detainee can be simultaneously in the legal custody of the sheriff and the temporary physical custody of another entity without interfering with the authority of the bail court whatsoever you two things are apples and oranges so long as the with respect to the detainees so long as it's roger slated we authorize it's not going to interfere with the bill court's authority and that includes the temporary release of the of of the detainees and vision by the legislature and that the jail protocol provision and on the appellate courts determination regarding the conflict between these two provisions misunderstands that both provisions invision different forms of custody and release there's a world of difference between discharge from commitment and the temporary physical custody release of the general protocol provision these two provisions do not conflict and we asked this court to which he offers a judicial oversight theory he abandons the appellate court's judicial order a requirement and he suggests in its place quote some sort of probable cause requirement essentially the phantom thinks the judiciary needs to be inserted into this provision in order to police the police and protect the rights of incarcerated and mates the fundamental problem with  theory is that he's never established that the jail protocol provision warrants construction it's plain on its face and even if it is somehow different and that's one of the primary arguments i defend it makes with respect to his theory that the other provisions in the act even if it somehow different doesn't make him beat us it only makes it different difference doesn't warrant statutory construction the fact is defendant can't show the requisite ambiguity the appellate court can't show the requisite conflict in the reason your honour's is because both of their arguments are premised on policy reasons not statutory construction grounds and as this court knows policy doesn't justify amending legislation so for all of these things i've said in additionally the other issues that are raised in this brief  if i might add one thing with respect to the fourth just so it makes sense it seems like we're asking all different kinds of things in different kinds of of remedies in this case the reason we're not asking for a reversal on the merits with respect to the fourth obviously not right now given the record before this court i'm not to find it hasn't hasn't had his opportunity to present proof and argument on that and we think that the system needs to work the way it should so even though we could get uneasy when i'm in this quiet on the fourth we would ask that it just vacate the opinion on that on the merits and leave the parties in place to litigate it in the future before the trial court if they so desire out by saying that on the bridge with the city council table is young mr joshua gutnick the one thing that i do necessarily begin to agree with with the representations of this sure all solvent is that in terms of the fourth amendment issue i agree with her i think that that if that's going to be what he gave it should be would a gaited at some future point in time  now because i don't believe that there are sufficient facts and circumstances before this court nor whether sufficient faction circumstances before the appellate court for them to have made that decision that'll be with her at the end i don't know that i agree that camp is irrelevant because but let me tell the court that i'm not here as a representative of the appellate court i'm here as a representative of the defendant of our son  why it is that they may have relied on that but in terms of a direct answer to this court i do not have the answer i cannot tell the court what was in their minds i wasn't part of their conference i wasn't part of their matters there at least are set aside yes what i would like to say that first of all with regard to the statements is the first same of the july thirty first and the second statement of the august sixth that the trial court suppress the first or the excuse me the last forty five minutes of the tape on july thirty first and did not suppress the interview his client while the over here was going on and with certain detail and facts that would suggest strongly that the police knew he was there because he asked to see him the police rejected it put him off  forty five minutes while they continue their over here i personally have been in that same situation where i've gone to police stations at the b has a family members were i have not met never met the defendant i've shown up i've asked to see my clients police officers have set me aside in one instance for several hours before they finally said ok now you can see your client but by the way he doesn't even know who you are i've been also asked area for a police department and july thirty first that from that point forward he was intitled to visit with his client they should have stopped the interview they did and so we are in agreement the first fifteen minutes before he  t advantage of deciding issues that were not otherwise argued below however in this particular case they not only decided based upon certain issues that were presented below they decided on this again as i would readily admit to this this court we are not suggesting that there was a sufficient probable cause determination for fourth amendment purposes and in the event that this court were to vacate that part of the decision that would enable us in the future since this case is still on tried to be able to argue if we deem appropriate but the fourth amendment issues are mccauley due process and right to counsel and i might also add that in two instances and a strong reason that i'm here is to defend my client and promote a suppression order that was entered as a result of a hearing that was held before judge soria where he had ample opportunity to weigh the evidence to judge credibility and decide and make certain findings of fact certain tapes so that the judge could more forward try to understand what he thought that he didn't hear on the tapes in other words he gave hubby the opportunity to tell him ok here are things that i've heard been a tapes when i was into them as far as the statutory construction aspect of this is the best that i was able to glean from reading the appellate court's decision in this case was the fact that they believe that there was an ambiguity ambiguity based upon the fact that there were separate sections of that statute which call for different different type of conduct in other words they walked all the other sections of the of the side of the county jail act and discerned that they were for the health safety and administration of the jail that they had nothing at all to do w allowing one force and to pursue their own interest nineteen point five of the county jail acts for sceptically allows a release of the person and then make two law enforcement agents are for purposes only of unrelated criminal investigations now what does that say in terms of the rest of the code or the rest of the statute that says that here we have a real distinct feature and that the state feature itself allowed police and law enforcement agents to use the good offices the good graces of the sheriff award to take people out of the jail for purposes of doing other decision in that case and it's best i can understand that would be the best i could come up with in terms of suggesting why is the appellate court used the infamous the room you're saying that they're  finding of an ambiguity in the statute is what led to them reading a judicial warrant requirement into this that better that's what i'm suggesting so so again if the if this court does address the issue and fin the so that the harmonization theory if you will that comes from jobs that the court also relied on very heavily in my opinion has some basis for suggesting that that's true in other words if in due course of commitment issue by a judge of ninety ways to administrative transfers to other county jails you know other counties if there are safety and or overcrowding issues and or  enforcement that is something that i think the appellate court took into consideration i think also they took into consideration the fact that they saw a wrong and they won the right that wrong and the wrong that they saw i think listened to those tapes took several hours before we got through them and made his own finding that he could not discern anything as a matter of fact he went on to say that he could not  justify the written transcript of the port partial written transcript that was provided to him by mr harvey with what he was unable to hear on the tapes therefore he determined that they were entirely on reliable and entirely untrustworthy and even if those tapes were presented to him at the time of trial for a bench trial that he wouldn't be able to do anything with them because he couldn't hear them finding by the court that can't be disturbed because there is no abuse of discretion here thank you very much site i have a couple of brief comments to defense counsel's argument number one he apparently agrees with our position that the fourth amendment part of the ruling of the court should be sent back because it's unfair to him he needs to offer proof he has an argument if he decides in the trial court but yet it shouldn't when the shoe is on the other five one the state ruling on grounds that were never litigated never raised never offered proof on never argued then basically we taking a huge step towards appeal by ambush in illinois and we urge this court not to condone something like if the balance right if the force needs to go back for him but if but the fifth is fine then its appeal by ambush only for her to state that simply is not a fair process of review and we asked his court to rectify that on the issue of the construction of the jail protocol provision justice for him and i'd like to clear up if i might any misunderstanding the court might have with respect to our position on people v camp it's not our position that campus irrelevant it's our position struing the speedy trial provisions had to decide whether or not someone was on bail or in custody it's such even if the sheriff does something discretionary only with respect to his detainees even if it looks like  feels like bail it's not bad so in other words there's it's ok for the sheriff to do these kinds of things and it doesn't interfere with the bail court's authority that's our position with respect to campus so no it's absolutely not irrelevant it's supportive of our theory and just briefly again with respect to defendants argument difference doesn't make something ambiguous this still protocol provision appellate court apparently saw a wrong and wanted to write it and that's actually something that i want to briefly talk about because implicitly the driving force behind both the position of the appellate court and the position of the fun in this case is this believe that the officers in this case did something unscrupulous and i'm here today to tell this court no uncertain terms that they did not nor by the way do the vast majority of officers out there behave in unscrupulous unconstitutional behavior the officers in this case did not try  why they were together in the ballpark michael davis then brought that information to the police the constitution your honour's can't and shouldn't protect these guys from themselves the use of undercover gang members is oftentimes the only way that the police and law enforcement and society as a whole can gather ramadans on incarcerated gang members it's  police is right and a societal good to get an admission from defendant's own lips so long as it's done within the confines of the constitution which absolutely was in this case your hon s don't let the scepter of the unscrupulous police officer supplant the reality particularly in this case the constitution itself stands about work against the world officer it simultaneously strikes a balance between society's right to truth and the rights of criminal defendants make no mistake about it your honour's if this court uphold the judicial oversight requirement it will essentially be pushing protections for criminal defendants into the and therefore for these reasons and those set forth in our brave again wes's court to reverse the suppression on six zero four eight rounds reverse the fourth amendment on procedural grounds reversed the construction on the merits every man because the for the fifth mccaul