rogers and i represent the people of the state of illinois and your honors the state is here this morning to ask this court to reverse the trial court's granting of defendant's motion to suppress evidence for two reasons st the trial court erred and the holding that the warrant in this case did not provide additional magistrate a substantial basis to conclude the probable cause existed to believe that there was a fair probability that contraband or evidence of a crime would be found in defendant's location information  on the st point i'll just briefly touch on the evidence that supported the issue in judge's decision and why that evidence you do under the proper standard support of issuing judge's decision finding that probable cause exist the evidence inspector henry's investigation implicated in emory's investigation courts have recognized that parolees are more likely to commit crimes and that prior convictions especially ones that were to the offense under investigation are relevant  courts have recognized that parolees have severely diminished expectations of privacy to the point where the th circuit recently held that the warrantless placement of a g p s monitor on a parolee vehicle was reasonable under the th amendment the  defender was laid off from a construction job for the winter defendant had paid cash for a new house and spent tens of thousands of dollars remodeling the inside of the house while leaving the outside of the house the lapid the rd category of evidence compass of rent also attempted to purchase drugs from defendant over facebook but the plan purchase afforded when it appeared defendant wanted to trade drugs for sex informant david proved that detail knowledge of the things he conducted a control by with a decision that they would like to point out that the probable cause determination is governed by common sense that are factual and practical rather than technical rules the united states supreme court is warned against invalidating war interpret in the affidavit in a hypertechnical man and finally the revolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded warrant the bottom line here  that we want as a society for officers to investigate crimes and present their findings to an independent magistrate and then execute within the confines of the court approved warrant the officers in this case did what we expect what we encouraged and what the  amendment demand doing the evidence presented to the issuing judge in a commonsense manner as opposed to hyper technically supports the issue in the judge's probable cause determination and they were guarded good faith briefly portrait considered a good base exception to the exclusionary rule because the facts of this case simply do not warrant the extreme sanction of exclusion where there is not any misconduct to deter what that your honour's the state asked the court to reverse the like you mentioned when we're reviewing the issuing judge's decision is that what we're doing or are we with you in the trial court's decision to grant the motion to suppress or your honor because this is a purely legal decision that the trial court made there would be no deference to the trial court and on this court i find the people versus brown out of this court and you're essentially reviewing  determine whether there was a substantial basis to find probable cause within the affidavit ok thank you and counsel isn't the information in this affidavit stale i mean davis is the information was over four months old and if it wasn't stale i mean you know how can well if it wasn't stale what why not we're honored mainly because this investigation shows that the full of an ongoing drug distribution chain this was not you know if you just took the two informants and you had none of the background information then it would arguably at least arguably be stale but when you have defendant's connections to the  defendant continually involved in the drug trade and so the court that recognized the stalemate argument loses much of its force when there's an ongoing drug dealing activity so you're saying there was the defendant was engaged in a continuing course of contact is that correct yes right well was smith a reliable witness and why was she i mean she's got an october two thousand and sixteen arrest doesn't that a have some effect on her credibility your honor that could and it does point out might be worth pointing out that when the motion to suppress was argue the parties agreed to operate within the four corners but because the motion was filed and it was filed with the joint motion wanted to suppress and then want to motion for a frank hearing so to be quite frank it to get muddled and some of atypical for a drug investigation to rely on drug users as people that may be drug dealers would trust but informants met outside of what she details of the offer is about being able to procure drugs they actually reached out to defend them through the police to purchase drugs and defend them i believe in the conversation with what do you need and so this certainly was not  the the officer that sought the warrant the fact that he testified at the preliminary hearing that he was not reline soley on defendant's parolees status it doesn't really affect the analysis at all because the th amendment is always now what what substantive effect is his parolees status have won is the united states supreme court has recognized that parolees are more likely to commit crimes and so that by itself elevates  analysis but the flip side to that is proper ollie's have a severely diminished expectation of privacy and the ultimate touchstones of the th amendment when you look at when a search is conducted is reasonable this and when an individual has such a diminished expectation of privacy searches quite frankly are more likely to be reasonable and i pointed out the th circuit case where it was the warrantless attachment of a g p s that occurred after jones and the th circuit said look we recognize jones but we're are hesitant to apply the same standard that is applied to normal citizens parolees noting their diminished expectation of privacy so i think for all those reasons the defendant's pearlie status is relevant despite the officer's testimony that he was not relying on the parolee status for the stop did you not make a motion to cite additional authority the johnson case that is the st yes your honor and why is that case important while the case is it really falls along wilson but it came out after the briefing so just to essentially just to emphasize that point your own then finally my last question is did she really forfeit your claim that even if this warrant was improperly issued the evidence was  exception to the exclusionary rule your honor the state admits the good faith was not argued in the trial court so it could be considered forfeited but if i may i think there are a few reasons why th opening the officers conducted a lengthy investigation they presented their findings to the magistrate and then the independent judge granted the request for a warrant so the officers in this team did exactly what we want which is to go seek a warrant and then independent determination the other thing is there's really no further factual development needed you know sometimes on a claim of forfeited we don't know what may have been developed in the trial court but here we're saying with an officer objective lee have relied on the issuing judge an independent determination or on the flip side was this affidavit so it's a bare bones affidavit that the executing officers not have relied in good faith and those are legal determinations they don't depend on any factual development that may have occurred and then finally there's really a lack of authority in this area for officers and so develop a good faith basis was bring some uniformity to the law and kind of you know without punishing the offer going this case set a guidepost for the future so for those reasons i think the court should consider the state's good faith ari thank you just the south do you have questions yes i just see not be pretty much covered most of my questions but i have one mr rogers credibility fermentation if an informant does appear but i don't think that you know completely undermines the state's case because the state presented a really significant amount of evidence about what the informants provided the officers for historical performance and then with that they the state provided reasons for the court not to believe the informant which was drug use convictions and you know any credibility issues that make from along with that so i don't think the fact that they didn't know the informant didn't appear undermines the state's case that's all i have thank you very much justice had said i thank you good morning mr rogers good morning roger mr rogers in response to a question by justice you know often the failure of the state to raise the good faith argument in the trial court responded to the argument that there was no misconduct  i'm on the part of the police they acted in good faith to ask the pointed question what does the good faith argument have to do with the failure of the state to raise that argument in the trial court are you saying that the good faith excuses or trumps the requirement that the state raise the argument in the trial court no your honor i mean certainly this the issue could be considered forfeited i was just providing reasons why this court should reach the  issue but not saying that it trumps the fact that it was not raised in the trial court all right mr rogers are you aware of any cases that have the nun seated a hard and fast rule as to when a warrant information becomes stale knowledge about the defendant is that correct that is correct you're right there was somewhere in the information i recall that there was a tip provided by davis concerning defendant's acts of delivering drugs medina on fridays to recall that yes your honor of the police could have easily cooperated that tip by verifying the defendant's presence and medina's home could they not have done that they potentially could have your honor and i'll just note that earlier on of the application they did say that in these types of operations covert surveillance is very difficult and so it may have been a situation where tailing defendant to that location would of undermine the investigation as i understand your overarching response to the issue of whether or not the information or was still is that because there was evidence provided there were circumstances that indicated this was a continuing ongoing criminal enterprise so to speak by the defendant that would basically legally sufficiently address the issue of the staleness is that essentially what you're saying essentially your honor and then add in defendant's background which kind of goes into the ongoing nature the defendant does not have a casual relationship to drug dealing this is more of a lifestyle and along with smith and then davis months later defendants continue connection to drug distribution yes  i'm going to start i guess by responding to some point that were just brought up with respect to staleness there is no information in that affidavit with respect to an ongoing course of conduct as to mr randall every bit of information in that affidavit related to things and i quote in the past and those were detective henry's words in the past and though they were words used by if you believe detective henery used by davis and smith these things happened in the past there is no such thread about it and in that affidavit to suggest that willie randolph was involved in an ongoing scheme of criminal conduct now a case a good case to be made with respect yvonne and medina however nothing with respect to mr randall and it's not a small point because it was a ten month investigation and not once was mr randall's be at all seen or mr randall himself seen in the presence  was so remote in time that it could not form the basis for probable cause finding to support the granting of the search for so i guess there's twenty two things i want to hit there number one uncorroborated information and number two information that was stale it's our position that the trial court was reasonable and her ruling was reasonable and it was consistent with the evidence and she correctly applied the facts to the law i think the state and i have a differing viewpoint on what the correct standard of review is i set mine out in the in our brief and we believe it's a bifurcated standard of review it's not simply a determination whether the issue a magistrate had a substantial basis right it's our respectful position that the trial court should only be reversed if the findings of fact were against the manifest weight of the evidence and this court can look  a not a small point the officers did nothing with misinformation for a full five months no investigation was ever opened in til november th smith's information once it came to light that through independent investigation that smith head error had been arrested on a class x methamphetamine charge after she had given this information and this information i'm sorry before she had given this information and the court knows smith claimed thirty to forty purchases over eighteen months but she never gave the date of her last purchase but we know from looking at the time frame in the warrant that it had to have been sometime between october  drug transaction i received in discovery just a couple snippets of whatever that conversation was the entire conversation was never produced but it's notable that the conversation trails off with what are you trying to do and smith tries to arrange a drug transaction and mr randall's responses do i have to there was no z no on mr randal's part to engage in any kind of transaction with smith  and it's very important that smith says in that exchange hey it's been a while so i mean that's just another another paraphrase for stale information she smith wasn't unable to identify my client's vehicle she was two vehicles outdated she didn't know his address she said it had been awhile and offer information and again this is in quotes was in the past she had given a right to the defendant totally uncorroborated and in the past pointed out could it be months years i mean you know it's impossible to conduct a meaningful analysis in terms of staleness when we don't know have any information whatsoever with respect to and in the past might be  warrant davis brings to the table zero personal knowledge you never had a conversation with the defendant you never made a perch just with the defendant he never saw the defendant commit any crime you never saw mr randall in possession of any drugs he simply told of conversation he heard other people having in the past it would relate it to a time frame in the past medina wanted people to have their money and because randall would would drop off drugs or something like that it's undated and unsourced information as to how davis knew when the defendant would transport drugs where he was getting them and that he dropped them off to medina but i i think it's a huge point that one hundred and twenty seven days passed from the time that davis gave this information to detectives in the time the warrant secured that encompasses eighteen friday nights they knew if davis credible they knew mr randall would be dropping the drugs off to medina on friday they knew where medina lived they knew defendant's car yet no effort whatsoever was made to corroborate that information and again part of the trial court suppression order was based on the fact the informant information was not only stale it was on corroborated by police davis said defendant drives drugs from an unknown location possibly chicago in the case law is pretty replete with you know it stands for rumor doesn't establish probable cause problems cause cannot be established by the word on the street or rumor with respect to continuing course of conduct and if the if the staleness is a problem then the state can cure it if there's evidence of a continuing course of conduct there's no evidence except for things that occurred in the past with respect to that effect and that and a virus is illinois tells us that probable cause doesn't jump from person to person probable cause has to be independently established as to each person  in this case during the entire investigation not a single witness saw the defendant commit any crime and never saw him in possession of drugs and never saw him even with these other people who were the targets of the investigation it's our position also that the confidential information itself did not establish probable cause and there's a variety of factors from gates and to slaughter including veracity basis of knowledge reliability reputation independent corroboration and i will quickly get a few of them with respect to smith and davis and their reputation neither of them appeared in court neither was sworn under oath to the truth of the of the information in the affidavit either of them signed  neither was ever observed by the magistrate so none of the traditional safeguards to make sure that information that allows such an intrusion in someone's privacy even a parolee none of those safeguards were taken here we have two convicted felons of knowledge i went through very thoroughly in my in the brief and i would argue there's no nexus to the dodge ram no one ever saw him driving that particular car and just as a commentary on what the state said about the defendant cars  was downgrading which was showing a lesser financial situation however it can't be and recognize that davis had no personal knowledge whatsoever and that there was no corroboration by the police as the court  the court itself pointed out another thing before i run out of time detective henry had no independent information but found a plan to acquire drugs that day he had only a hunch and that was in his preliminary hearing testimony under oath and with respect to the parolee are human it is a red herring and it's a red herring because in this case the state decided to get a tracking warrant they decided to get a tracking work because they had to go that way if they wanted to track  the supreme court under jones now requires a tracking weren't there is no exception if the person is a parolee the difference between regular parolee search and what the it what the state did here is how they went about the search they'd chose this route and they can't read now rewrite history to say that this was a parolee search when we have under oath test the money three different places from detective henry the lead case agent this was not a parolee search and in fact prohibits randall's parole status had absolutely nothing to do it was no part of the investigations whatsoever so for that reason it is a it red herring but to address it anyway the search in this case depended on that tracking warrant they were not pulling that car over to do a parolee search they were doing that cop pulling that car over to get inside that car to search for drugs based only on a hunch and but for the t would not have been any position assembled along i eighty eight waiting for mr mr randall jones adds protections regardless of what your status is and illinois has caught a five jones in the freedom from location surveillance act and that absolutely requires a search warrant which is the search warrant that was gotten or that was obtained in this case and the search warrant has to be supported by probable cause all  the the cases cited by the state are different and can be distinguished those are parolee spot checks those are individual isolated and including the johnson case that  court has given them leave to go to site that's a st district that's not binding but more importantly it was a parole esearch at the person's home that is not what we have here and johnson the johnson case did not  united states versus jones because there's no g p s tracker involved in that in the johnson case there was no warrant required for the type of parole a search that was undertaken in johnson in this case the state concede that it needed the warrant to tui fix the tracking device to mr randall's car but it also says well it's really not it's not really relevant because i think their their point they made in their reply br was that they don't even believe they needed the warrants to track mr randall's car because of his parole the status that's not what the u s supreme court case law says and there's also a ton of illinois case  law most of cifelli people versus the floor and people versus the floor recognizes the principles from wilson that parolees have a diminished expectation of privacy but just because it's diminished it doesn't mean they have they're not prisoners it's not that they don't have any expectation of privacy they are to oh i'm sorry now so i think you're out of time and know it's hard for all of us to hear the timer but if you want to just wrap up please i apologize for that and i will wrap up i'm like the defendant in wilson whose bedroom was subject to a one time were to search while he was on parole the defendant was subject to continue with surreptitious and e questions and to complete this oral argument that within the time frame so thank you very much for your argument i do have some questions for you you seem to insist that our standard of review bifurcated standard of review that applies to motions to suppress and that we are reviewing the trial court's decision but how do you get by the nd district case people versus brown where this court stated and i'm quoting where the only issue was whether the complaints of supporting affidavit establish probable cause our analysis is of the issuing judge is the national determination of probable cause not the i set forth a well a what if what what case supports your position that the standard of review is the bifurcated standard a number of cases i would basis of knowledge was shaky but these were not anonymous informants worth a they were not anonymous informants your honor but nor were they brought before the court nor were they ever sworn to the  information and let there anything they don't have to appear before the magistrate however that's not a requirement as such it is not a requirement however it certainly adds to probable cause and certainly bolsters their information when they are sworn to it and when they appear before a magistrate but we do have to look at the totality of circumstances do we not and then doing that  the state referred to other factors that are taken into account if we look at the totality of circumstances such as the fact that defendant was a documented gang member that davis did provide information about the gangs drug operations and the defendant's role in that they the state also talked about the defendant's prior record that some of the information that the state indicated should be  in addition to the probably status which we've talked about should be taken into account isn't that sufficient here all these other factors but i would look at the total circumstance absolutely the court looks at the totality of circumstances that's correct however when you look at the totality of circumstances with respect to mr randall in isolation whose freedom is on the line here all of the information  relating to mr randall is information from the past it does not stablished an ongoing course of criminal activity and they had ten more points to corroborate any of this information and it was wholly uncorroborated i don't think it's proper to simply say this person has a background ok boom that's probable cause because you know once a once a criminal always a criminal it doesn't work like that all all of the information in the past counsel one other question then i'll turn it over to justice just on the th page of the affidavit while there is some language at the bottom of that page in that paragraph that starts on november st two thousand and sixteen davis overheard medina tell others in the past but there's also a sentence that says davis said that randall transports that's present tense the drugs from an unknown location and it goes on to say this transfer typically occurs that's present tense  so there is language in this affidavit that is present tense language and so we need to take that into account also do we not well i would argue there would be a stronger stronger reason for one question counsel is very do you have a case that sets out a bright line as to how long before a warrant is stale your honor no i have cases that say the opposite there is no bright line and it's a case by well if the informant if smith had been in the courtroom for instance maybe when the officer talked about her background she might have piped up and said oh by the way i have a pending class x felony it's important i think it adds to their real liability it adds to their credibility and and there's no substitute for a magistrate being able to observe confidential informants in a courtroom and it's a factor that's in case law talks about you know what do they have to be there they don't have to be there but it certainly heightens the process in the the reliability so it's just one factor it's one factor correct and the same with it the search warrant it's not doubt that has to be proven it's just that they just have the judge assessed determine that there is a fair probability that contraband ever since a crime will be found in the particular place correct correct  that's correct that's the law so the so the burden on the state is not so strange well i would argue that is it is stringent they do have to show that the evidence will be found currently that's part of the inquiry and there was nothing print here it was stale and they also have to show a nexus it has to be probable cause has to be particularly rise to a place and here there was no probable cause whatsoever with respect to that dodge ram and the state argued well probable cause hops from car to car to car even if we don't know what car a person is driving that's just not how it works right m eleven other question  e good faith exception you argued in your briefs that they the state had waived that and today they come in and they say wavin if we waived it you know you can look at it for other reasons do you believe that that the rules apply to the state as well as to the defense it's not fair to raise something for the st time on appeal when you know the senate hasn't been and the trial court hasn't been allowed to respond to it and we also  it was argued below so this is not a close case and i think i believe in if i'm wrong i apologize i believe the trial court found it was not a it was not a close case and the state further said you know it shouldn't apply because there found in the search warrant here had misrepresentations not only did it not disclose smith's pending classics methamphetamine charge nor did it disclose the true nature of her relationship with mr randall moore and it did  not and it misrepresented to the court that she had recorded mr randall in compromising conversations that is not true at all oh in winter when i saw what the governor of that was told no no there is there are no d david it have st hand knowledge of the local saying the sample street gang and their operations no i don't think i have enough information to acknowledge that it's somebody even if they don't on the other hand are you i'm not i mean the search warrant if you take the search warrant at face value and i'm not sure you can in this particular case they provided information about say the disciples however there's no information to suggest mr randall was still a member  still affiliated with or still in ongoing contact with any of these people that were the targets and this was an extensive investigation not only of mr randall but of those other people and in ten months my client has never once seen in the presence of any of them i think that is a very important fact and with regard to the staleness issue would you agree that if we were to find that the other than the information provided by henry was sufficient to cause a reasonable person to believe that the example that would not trump the staleness issue that's your argument i would argue that would temper it and with respect to this case there is no evidence whatsoever in that war with respect to ongoing criminal activity it was all in the past which is a phrase that was quoted all throughout that war and i phrased my question is if we were to find you have any cases that say that if there was an ongoing criminal activity up into the date that the warrant was obtained that would only temper the staleness argument do you have any cases that say  that i don't think i i don't think i do i can't think of any at the top of my head ok i have a final question i think either just stick or just as you know it may have raised this and you actually said that the fact that davis didn't know the location of transfer typically occurs on fridays and after your read to be referring to an ongoing activity well perhaps if there were more background about how he knew it when he learned what his source was i don't think there's enough to make that leap here all right thank you very much save your honour's thank you mr rogers your to your honor i'll start by briefly making an analogy in a case like this i think it's good to look at it like a one hundred piece puzzle and maybe you're a fan a national geographic and you like tigers and you have a one hundred piece puzzle that makes a tiger but if you take all those one hundred pieces and scatter him out it would clearly not look like a tiger and i think that's what defense counsel blows successfully able to get the trial court to do is to isolate the time line like probable cause but this court finds it only necessary to address one of the arguments the most persuasive argument set forth by defendant is that the information used in the complaint for a search warrant was stale and the state would urge this court not to go  the same path into isolate any given fact and elevate that to determine that there is not probable cause there was a lot going on in this case defendant's background is very important of defendants drug distribution activities the only reasonable way to read that nov st two thousand and sixteen conversation is that medina telling davis that defendant is continually making these transfers on fridays and that's why he needs the money from all his lower level dealers by then they would also seem to have pretty inside knowledge of the saying the bible i mean he's conducting transactions louis von and at the end of one of the transactions of on till they've been the fly on pots and pots is a reference to medina now law is not going to use that slang language with just the customer is going to use that language with someone who is intimate with and familiar with the nickname defendant also brought up the delay the defendant did not obtain this truck until february t and seventeen the officers could not have obtained a warrant to track this two thousand and fifteen dogs ram until the defendant obtained them so the fact that there is this view month delay is understandable given the defendant i gold on such a regular basis and then finally defendant towards the end of the argument started attacking the truthfulness of this complaint and again when this motion to suppress hearing started the parties agreed to separate out the suppression issue in the franks issue and so that the decision under review was solely to be based on the four corners of the search warrant affidavit and i would  to similarly look at what is contained within the affidavit and if defendant all remain wants to renew the franks challenge or request for a friend's hearing then defense should be free to do so but it should not be able to selectively warrant it cetera i don't know about carte blanche your honor but in a lot of the cases they do have carte blanche to search the individuals residence vehicle of facts now in this case little it was a little unique because we do have this statute now which carved out exceptions so while it's not carte blanche i think the parolees status and the severely diminished expectation of privacy factors into the analysis thank you missile daniel has honed in on the issue that davis is information concerning the defendant was incorporated by the police and that davis provided no personal firsthand knowledge about the defendants going  operation how do you respond to that argument mainly your honor in that to say davis is statement for uncorroborated i don't think is one hundred percent accurate because smith actually described a ride she took with defendant to procure a large amount of cocaine near chicago and so whatever we have seventy eight months apart we have one person actually accompanying defendant to chicago to  and then we have someone else saying hey defendants role in this is to travel potentially near chicago in return with large amounts of drugs for the same disciple to sell so while davis himself didn't have firsthand knowledge smith certainly decision and do course and at this time this argument has concluded thank you