thank you may please the court my name is brian mcintyre i'm with the office of the state appellate defender and i represent german mel banta i know it's misspelled the  captions right in our your honor what started as a routine traffic stop with jim ellis the passenger quickly turned into an unlawful seizure an unlawful pat down search further unlawful detention for twenty to twenty five minutes a more invasive and unjustified search of journals growing in bucks and eventually d turned into just dramatic being forced to the ground but for police officers and help there well two more police officers pulled down his shorts and without a warrant and he did he said that after police had patted him down and found nothing that searched the vehicle for what he said was about half an hour winds up being about twenty minutes and still found nothing that came back to him and said they needed to continue the search he said no you already searched me once did you find anything or nothing at all and my previously but he was not free to leave and officers would admit d this instead trooper chapman searched growing searched his buttocks and deep between but he finds a hard oblong object about the size of a golf ball what your mel says is the trooper chapman not only penetrated his rectum but also slid his hand like up and down like a credit card between your mil's buttocks based on no suspicion whatsoever and so the shift the burden of proof quite easily now the state must prove that some exception to the th amendment justified this intrusion allowed a traffic encounter routine traffic stop to turn into a strip search at the side of the road them and lays out the three tiers of police encounters it says for consenting counter no suspicion at all is needed but as we see in people b anthony if the state were to rely on consent it would need evidence of affirmative consent and they never present any mel did not tell me no which is sort of the opposite of affirmative consent and as we see in people b anthony what your belt does in the video by the way the video was silenced during this portion there at the side of a busy highway and police during the twenty to twenty five minute search where they found no evidence against rebel had silenced their audio recording it's not back on yet by the time trooper chapman reapproach instrumental so the state presents absolutely no evidence of primitive consent the closest they even try to come is he not tell me no and that's simply not enough so the state did not show affirmative consent of any sort even if they had that supposedly implied consent would have followed unlawful detention and search so would be presumptively involuntary so the courts finding that journal consented because he wasn't penetrated and his consent retroactively validated his detention and searched it's against the manifest weight d of the evidence and the established law it simply cannot stand if the state were not going to rely on consent it would have had to show that officers were justified when they began each act when they began each part of the search by what they knew and the state didn't do that instead trooper chapman says he was suspicious because the driver further the driver said he was going to bloomington to buy new shoes but the driver did not have new shoes well just because you go buy shoes doesn't mean you have to actually purchase them develop new shoes he said he had purchased a few days before entertainment could not understand why one store new shoes if your belt recently button issues that subjectively unreasonable and he says you're mel said he was traveling to chicago to see a sick aunt to one store by the way if there is to be danielle stewart's husband or relative objects and says objection hearsay and the state response your honor it only goes to what the officer does not just another way of saying that is your honor we're only admitting us to establish the officer's course of conduct and because evidence admitted only for course of conduct cannot  substantively it's not your set and the court accepts this explanation notably the state never tries to present any evidence whatsoever to show that there was a trained drug detection animal on scene or reliable or any other basis to establish probable cause based on the dogs and the state is a stopped by the way from arguing this on appeal because it cannot imagine that there might have been evidence which it didn't up present to meet its burden of proof so there's no probable cause or still only an unreasonable suspicion we've all grown jumped ahead now certainly it's easiest to count them there at the end but they're all peer to be on the scene but at times so following an unlawful pat down police search the car for twenty minutes based only on an unreasonable bell story isn't coming up as we see in florida the royer they cannot detain him based on that they certainly can't search him again so after the illegal search they keep him there and they can't find any evidence that he's doing anything wrong it's just that his story doesn't  and based on that and the fact that your chapman cannot find any evidence to suggest wrongdoing he comes back and says i have to continue the search if it will develop if not tell me no again it's not affirmative consent but also he articulates no probable cause for a rest and searching for most groaning and buttocks would require probable cause for arrest that simply cannot be done even on reasonable suspicion even if it existed and so at every stage police pushed past what they were allowed to do  nothing more than incoherent hunch and tribal courts denial of the motion suppressed was therefore against the manifest with the evidence the state never presented any evidence of affirmative consent period or any way to show that such things that could be voluntarily given after an unlawful detention and search they never presented any evidence of a reasonable suspicion that dramatic engaged in criminal activity in order to detain him they never presented any evidence that he was armed and dangerous in order to allow his partner which was separately needed he never presented any evidence to establish probable cause therefore the burden could never shift back to terrelle if a motion to suppress the ultimate burden is on the movement the burden could never shift back to jamal the trial court's ruling was against the manifest weight of the evidence and this court reversed the conviction because that was the only evidence against rebel now moving on to the nd argument if the court had somehow had some evidence which it did not that there was either probable cause to search between your  gave affirmative voluntary consent to the search st of all the transcripts are clear so there's nothing in the testimony to establish any of that the only possible way the court could reach that is by finding something in the video as i mentioned the video literally silent on this issue because of the side of a busy highway and for the same reason they're not supposed to perform a strip search there it's loud it's noisy there's traffic so they turn off their audio recording at least that's the presumption but what that means is that state's evidence does not he never got to see what the court saw in that video more importantly he didn't get to see where the court viewed it whether the court knew that there was supposed to be audio for some parts what the court saw and heard in fact in this case the d v d was lost and we had to supplement the record because it appears to been lost in the judge's home d v d player we had to use the state's copy because defense counsel's copy was lost to the judge and so your mil never gets to see what the judge is supposedly relying on to shift the burden back to him there's no evidence to do that but if there had been he would have a right to rebut that evidence and he was not that opportunity he was not the opportunity even to see what the judge could see to hear what the judge could hear and again the video is silent on consent literally and so i understand the court cannot reach this nd issue unless it is unable to grant really based on the st issue under the principle of constitutional avoidance this is determining the limits of a constitutional right and in young the court said well that constitutional right doesn't necessarily extend to a state's motion to admit the hearsay statements of a child victim but that's entirely different the state would have the ultimate burden and as the court ruled and young there the defendant would have no knowledge of the contents of the video he would have no ability to say wait there should be sound here or wait as you see me waving my arms when trooper chapman re approached me and then placing them behind my head in the position of an arrestee i never said yes i said no you already searched me present you see but his attorney just says just do it when he wants and the judge never even found that the burden shifted back to your mallet never even told him oh by the way you'll need to present additional evidence it's just that well you weren't penetrated and at some point consented so this must all be ok and so if the court is unable to grant relief on the clear legal issue of a motion d to suppress where there is no evidence to warrant the denial of the motion then it can reach the constitutional question of whether journos right to be present extends to his right to rebut the state's purported evidence that he consented to an invasive and unconstitutional and humiliating search which ended a strip search inside the road where he's being pinned down by four officers and just roped by two more shots that he cannot  you never would have had anything to rebut because there was absolutely no evidence of consent the state failed to present any such evidence the motion had to be granted and once again because this is based on clearly established law and does not reach the constitutional question of determining the limits of the constitutional right to be present constitutional avoidance would require the court to address them and then ultimately with what resolution oh i apologize your honor because the only evidence against your melt was subject to suppression as we see an argument three the only evidence the state presents is one lump as they say an oblong lump about the size of a golf ball that your chapman thought might be drugs three pro between drills but it's all rely on my brief for why that's not ok either but that's the only arguments i would based on that i would ask the court reversed developes conviction right if not that it grants him a new motion to suppress where his opportunity to be present his right to be present is observed and you know rely on my brief for the remaining arguments tha rule regarding the length of briefs is that it is either the sixty page it is it is if the brief is under a certain number of words that it could be admitted without a motion to to exceed the page limit request  under the rule if that's my misinterpretation of the rule i apologize that was my understanding of how the rule regarding briefs filed before the court under i believe three hundred and forty one operates if that is my misstatement i apologize for not apologies again for the the page limit issue if that is the case i would like to open this discussion of the search itself by starting from the premise of the th amendment which is that the th amendment protects a citizen from an unreasonable or seizure and as this court the illinois supreme court and the u s supreme court have repeatedly reiterated over time reasonable is the touchstone of the th amendment what is reasonable and light of what is known to the police at the time that they decide to see someone decide to search someone does it comport with what the courts have said is reasonable under circumstances and as the th member has been fleshed out throughout the entirety of the history of the constitution we've seen numerous cases that have to find contoured that right in various circumstances as as they have presented themselves over time what we had here was a search where at each phase of the police's detention and then subsequent search they made reasonable decisions about how they be how to go about dealing with a fluid situation they stopped the vehicle for speeding both the driver in the passenger were able to legally drive a vehicle they both had suspended licenses we have a situation where during the process of finding out that these two people cannot drive the car and are now on the side of the road and able to legally operate the vehicle they within the reasonable search of the reasonable course of the is regarding the hearsay issue in the dog it's a clear principle that a suppression hearing a court can rely upon hearsay for the substance of purpose of a st such as a purpose when evaluating whether or not evidence should be admitted in court obviously i understand that you can't rely on this later justification for this but defended it up stipulating to the fact that we would have called the officer at trial and he would have said specifically that the dog had alerted and we would lay the foundation for that so there was no question  what would be entered news the trial we've got a st deal with what was happening during the motion to suppress absolutely your honor for purposes of the motion to suppress the prosecutor for whatever reason instead of just saying it's probable cause he says well john you were only in the show the foundation for the officers subsequent actions so he's not even offering it for the purpose for which you would normally be considered yes your honor but a couple of things one of course this court can affirm under any rationale that's been the basis for the record but additionally the trial court is presumed to know the law and apply it correctly so if the essay had said something  completely incorrect about the hearsay reasoning like it was an excited utterance which would not be a correct statement of the hearsay exception that applied in this case or if there was a hearsay exception and the court had said ok and then later considered the motion realized oh this could just be admitted substantively there is no reason to reverse the prior court's judgment because as they made an incorrect statement of law that later turned out to be in this case overly restrictive on what the course is courts use of the evidence could  i think the premise of that question assumes that the court misunderstood which is not what this court and the owners from court have specifically repeatedly said which is that courts are assumed to apply the law correctly and if the court at the time accept  explanation and then upon reviewing the evidence in the in the legal doctrines and thinking through it like a judge does after the hearings said well i can just rely upon the substantively that's a correct statement of law and defendant has no rebuttal to the argument that it's wrecker no but it's not but again this goes to burden shifting it is on the defendant to show that the trial court relied on the law incorrectly or made a misstatement of law or misunderstood the law here were saying that  but again if the record is silent we assume absent other evidence at the trial court correctly used the law applied in the case and again defendant offers no argument as to whether or not the court did consider it if there's any evidence one way or the other as to that and in this circumstance we presume of the trial court correctly evaluated the evidence and again i i kind of shocked that the argument have to rely upon the argument that an essay making a misstatement of what an overly restrictive misstatement which way doesn't make a misstatement he offers evidence for a limited purpose because it's an out of the reason it's relevant is because what you're going to do is in a minute you're going to bootstrap the probable cause onto the subsequent actions of the police officers and the problem is there's nothing in the record indicate that the that the judge considered the canine sniffs as probable cause of anything judge decided the case based on the consent issue i would i would be worried on judicial kadhimiya grounds alone for this court if it were to say that because a record a silent about whether and whether or not the trial court ended up making a decision based on a mis misunderstood a different understanding of law than what an essay offered that that is evidence that the court made a misstatement of law and therefore a manifest weight argument has to be thrown aside and a novo argument somehow applies because there's a legal error because the court didn't extend fictionally explain or may have used the correct statement of law and therefore there's a reversible error i think i think that would present numerous cases that this court would not would find ridiculous in and a number of different circumstances i know in this one it obviously makes much more sense because we must say missed oak and limited or on incorrectly stated that he should he offers offering it for a limited purpose when he could have just offered it for the substance of purpose which is that it establishes the trooper did that and especially in this case where there's a record that they would have called the officer at some point in the trial i know i understand you're on because you did bring up that that is obviously after the suppression hearing and can't be used retroactively but if we're evaluating whether or not it was reasonable for the trial court to take that statement for a substantive purpose then the fact that it was later stipulated that we could have called someone who would have laid out the foundation i mean speaks to at least the truthfully i don't think there is a way that i could do that without i think that the statement itself has to establish that the drugs that the dog alerted in that the drugs in the car were loaded at that point or for the search to make sense there is no i stop could then be extended beyond the purpose of the stop and i guess the only other logical way i could make that argument is that somehow he couldn't drive a vehicle because he has suspended license but obviously that would give them cause to search the vehicle and him later or request to search him later i guess that would be i'm sorry i'm now speaking through this out loud so it's kind of kind of difficult i was assuming this is going to be such a big sticking point considering the nature of the law on this  but i think that it is important to establish that they have cause to search the vehicle and him with the fact the dogs just make a use and again i read your owner's shifting the burden onto this the state to disprove a misunderstanding is not a burden shifting we just take the record as it is in the record says they often are for a limited purpose there's nothing in the record indicate that the court was asked to consider it for purposes of brokaw's nor is there any indication that the court actually considered for probable cause write your own but there is no response to the argument at least from the defense because he hasn't made this argument that it couldn't be relied upon for that purpose so it's a trial court upon sitting reviewing the evidence did that then the search will get to was entirely reasonable from from a to z at that point at each step of the process the officers got an alert which then they relied upon to give them suspicion to search the vehicle we also argue gives them  again i just think that the argument that the trial court how we because those state makes the offer something for a limited purpose that the court can then rely on it for its proper purpose which it obviously can based on the law and defend it can't offer an argument that says that that's not the case that that's somehow a improper for reviewing court to take into consideration and to into view on appeal if there's no further questions on that i can i can move on to the the rest of the search from the point in which they take defended out of the vehicle and search the vehicle and search through it so at the point in which the the dog alerts that there are drugs in the car as the state has argued they had probable cause to search both the vehicle and the defendant himself and i can discuss the issue of the fine the case and how the number decision points out the flaws in that case and how it creates additional  requirements on canine units that aren't present when a police officer detects an order how it shifts the burden of the state to provide proof that investigative technique is somehow proper when reality at the defendant's burden for a motion to suppress all of those issues  have been recognized by this court in a subsequent decision i believe is the sorry the boy case which discussed the nd district's holding a number but the and this court seems to be willing to revisit that particular line of precedent in that it discussed that decision in great detail and decided that it didn't have to revisit its decision because of different grounds that didn't apply in the funnier decision but our argument is that that would have establish probable cause by itself it would have to get into the consent to issue but if we get into the consent issue i mean the situation that occurred as a defendant and this again goes to the misstatements of the fed makes about the state's argument defendant consent or not i think that this case is quite instructive because in the accounting of the the officers here defendant doesn't say anything when asked if you can be searched and then while he's being searched says oh no i'm fine being searched but could you switch officers and the state those are the police oblige him and switch officers and at this point i've already found what they believe to be drugs and the defendant's buttocks and again confirm with the nd officer that there were drugs in his his  his between his buttocks and at this point a probable cause to retrieve the drugs from his body and again defendant's argument relies on about this whole series of events relies on this stating that somehow the defendant's previous statement retroactively renders his silence fine in a sense that somehow being silent is not consent and therefore his next statement is reverts what was not consent into consent the state's argument isn't that the state argument based on supreme court precedent  is that silence can be consent and that all we were using by the statement in the middle of the search is to prove that his silence previously was consent and i think if we take this entire search in  in a holistic view about what the police and the defendant were doing in the situation and how the search occurred we see that the police believe behave reasonably at every stage they stop to via our innocent man are up here for a moment yes of course  to spend a fair amount of time discussing those cases why not well your honor i felt that those cases were not instructive and i think i offered a case that i thought was more on point at the th district gave i can cite to it really quick oh yeah i discussed this court's ruling in paris as a way as a more instructive case if the court feels that i didn't adequately address those two cases i apologize but i the issue with th amendment cases i feel is that because the factual circumstances are so specific to each one it's more it was from my perspective more instructive to take a case that i thought was more closely balanced to this one based on the facts and i guess allow the court to make its decision as to whether or not it believed that the case was closer to the one that i cited versus the one that the defendant cited but if the court specific questions about those cases i guess i can address them but well it deals with  have a defendant who does not say anything response to requests to search and who then in the middle of the search declares that he was fine with the search and that he just wanted a different officer what did he say that you interpreted as his communicating he was fine with the search ok so my recollection of the video itself was that he said something to the effect of that he search and that he consented to the search and i think that these cases are difficult as the supreme court has outlined itself because again we're relying on a lack of a statement to establish affirmatively that someone agreed to a search and that is obviously a murky territory and in terms of a murky territory it is difficult territory for trial courts and for reviewing courts especially to evaluate on records because they're obviously not encountering the witnesses in court in person and the statements that i saw on the video i mean i don't i i i guess i strain to figure out what else he would have to say at that statement to establish is enough to establish in a reasonable officers mind at the facts in front of him that the defendant consented to the search i think that that is a perfectly fine rule to establish or at least in this particular set of circumstances to find that do want to respond to a couple of things the state says that we presented no arguments at all about this dog the problem is that a motion to suppress if the state wants to establish probable cause for a search again state's burden of proof they have to present evidence of a trained reliable drug detection animal not another officer told me about an alert when d one when the arresting or seizing officer relies on information provided by the instigating officer someone else the question is not a good faith of the acting officer it is the information possessed by the instigating officer i think the case henderson dealing with the police flyer or bulletin between two agencies and the issue there is that all they say is oh somebody said something about a dog alert even if that were to be taken as true even if it could be used for the truth of the matter asserted by the way the state for clues and the cross examination on this issue any further evidence on this issue because they ask the court to consider it only for a limited purpose so that all there can be no vetting of whether that was a trained animal whether this was a real alert even so the state sites to pet us and fund us in response to the consented issue that's not about consent that's about a dog search and those cases say that when the dog handler gets up and testifies to his training and testifies to why the alert was valid and why it was reliable then and only then can this court rely on it and even so alert to a car without some testimony from the officer that is training will not allow him to search individuals is not enough to search an individual so even on that authority even if somehow somebody told me about an alert could be substantive evidence that an alert happened it's still insufficient to establish probable cause for purposes of a motion d to suppress now whether evidence of the alert or of the dog should come in whether evidence then that should come in yes ok maybe maybe the court will kick said the dog alerted so can't comes in and shows that that was a reliable alert maybe there's probable cause but the state went the other way and precluded any cross examination on this issue didn't even present trooper king so that is not a basis for suppression and the people who are referenced the  speeding and that's true but then the court says that the detention and search were valid because he consented well since there was no evidence of affirmative consent as anthony says is necessary all there is there hell bent to arguing with the officer with his hands for a moment we can't hear what  saying and then putting his hands behind his head in the position of an arrestee that's effectively his anthony says d do what you have to do and when he says i'm cool if you stop searching between my buttocks if you stop rubbing me and making me feel uncomfortable this officer is too rough i'm not going to fight you if somebody else takes over and treats me like a human being but they don't do that the next officer takes over and goes right between your mailbox and the the idea that consent can be established based on nothing nothing at all no test one comment was i'm cool if i'm cool if another officer takes over yet thank you which means i will not fight you it could reasonably be construed as i will not fight you as we've seen people be anthony if there are two reasonable constructions one being do what you have to do and one being maybe you could call that consent but it's not consent but even so that happens after the search begins that happens well after he's been illegally detained and frisk and anything that happens after an illegal act by police is presumptively involuntary the state presented no evidence to show that it could have been voluntary rather than him being surrounded by six police officers who would soon strip search him in public after threatening to tase him and take away what little dignity he has left because those statements are also in the video and officers who say that don't think the guy's conception by the way even if it had some justification to feel between his buttocks in the st place and if you along there that they thought might be drugs raible he says that it was the incriminating character is immediately well but what the officer does not say and again it's the state's burden of proof as this was on mistakenly contraband it should never get that far at no point where the officer's actions with respect to germany justified he was never allowed to try to leave the scene to arrange a ride away anything he was never even allowed to stay silent and not have that taken as yes you can search between them but it's absolutely ridiculous the court's ruling was against the manifest when the evidence an established law and scorched rivers thank you thank you mr mcintyre thank you counsel