Illinois Official Reports

Appellate Court

People v. Montes, 2020 IL App (2d) 180565

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

GILBERTO MONTES, Defendant-Appellant.

District & No. Second District 

No. 2-18-0565

Filed June 24, 2020

Decision Under 

Review

Appeal from the Circuit Court of Kane County, No. 15-CF-928; the 

Hon. James C. Hallock, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Thomas A. Lilien, and James K. Leven, of State 

Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, 

Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE BRIDGES delivered the judgment of the court, with 

opinion. 

Justices Jorgensen and Brennan concurred in the judgment and 

opinion.
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OPINION

¶ 1 Following a bench trial, defendant, Gilberto Montes, was convicted of unlawful possession 

of 900 grams or more of a substance containing cocaine, with intent to deliver (720 ILCS 

570/401(a)(2)(D) (West 2014)). On appeal, he argues that (1) the trial court erred in denying 

his motion to suppress evidence because his arrest was not supported by probable cause, (2) his 

unconstitutional arrest vitiated his consent to search his home and requires suppression of the 

evidence found therein, under the fruit of the poisonous tree doctrine, and (3) if his defense 

counsel failed to preserve the issue of probable cause to arrest, counsel provided ineffective 

assistance. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 27, 2016, defendant was charged in a two-count indictment. Count I charged 

him with unlawful possession of a controlled substance with intent to deliver (720 ILCS 

570/401(a)(2)(D) (West 2014)), a Class X felony. It alleged that on June 12, 2015, defendant 

knowingly and unlawfully possessed with intent to deliver 900 grams or more of a substance 

containing cocaine. Count II charged defendant with unlawful possession of a controlled 

substance (720 ILCS 570/402(a)(2)(D) (West 2014)), a Class 1 felony, based on the same 

allegations, minus intent to deliver.

¶ 4 A. Motion to Suppress

¶ 5 On March 30, 2017, defendant filed a motion to quash arrest and suppress evidence.1 He 

argued in the motion that “the arresting officers had no warrant for [his] arrest and were not 

authorized under any provision of the law to affect such an arrest.” He further argued that the 

police improperly searched his residence without a warrant or permission. A hearing on the 

motion took place the same day.

¶ 6 We summarize defense counsel’s opening argument on the motion to suppress. On the date 

in question, defendant was stopped by Department of Homeland Security (Homeland Security) 

investigators though he was not committing any crime or engaging in any unlawful activity at 

the time. After the officers placed defendant in custody, they learned that he was in the country 

illegally. Counsel stated that this was “really not one of the issues in the case at this point, but 

[he] guess[ed] it [was] a sub-issue.” The officers then searched defendant’s vehicle and house, 

without a warrant or consent, violating his fourth amendment rights.

¶ 7 Defendant provided the following testimony. On June 12, 2015, he lived at 1075 Lisa 

Boulevard in Aurora. At about 11 a.m., he drove in his pickup truck with his dog to a Walgreens 

store and bought some items. When he exited the store, a man stopped him and told him that 

he was from Homeland Security. He asked if defendant was “Flores,” and defendant said no. 

The officer asked another question, and defendant said that he could not answer because he 

did not speak English. An officer who spoke Spanish joined them and three or four unmarked 

police vehicles arrived. All of the officers wore civilian clothing. They asked defendant for 

1

One appellate court panel has stated that “motion to quash arrest” is an arcane phrase that is 

essentially meaningless verbiage and that such a motion should instead be titled “motion to suppress 

evidence,” as that is the motion’s goal. People v. Dunmire, 2019 IL App (4th) 190316, ¶ 28. We will 

therefore refer to the motion here as simply a motion to suppress evidence.
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identification, and, when he showed them his identification, they said that it was “garbage.” 

Defendant wanted to go to his truck to let his dog out, but the officers did not allow him to 

leave. The officers said that they had a warrant for his arrest for selling marijuana and that he 

was under arrest. They searched his truck without asking for permission but did not find 

anything.

¶ 8 Defendant’s identification listed his address as 609 Lake Street in Aurora, which was his 

previous address. An officer said that defendant did not live there anymore and that they were 

going to defendant’s current residence, at 1075 Lisa Boulevard. Defendant asked if they had a 

“permit or permission to go in,” and the officer said, “ ‘No. It’s okay.’ ” An officer drove 

defendant’s truck to his house and parked it there. Defendant was handcuffed and traveled in 

another car. There were about 8 to 10 police cars already at the house. The police were going 

to kick in the door, but then an officer asked if a key he was holding was defendant’s house 

key. Defendant said yes, but he did not give the police permission to go in. The police never 

showed defendant a warrant, and they did not ask him to sign any documents.

¶ 9 Sergeant Detective Montague Hall testified as follows. He was a task force officer in the 

narcotics group of Homeland Security. He was also a sergeant with the Waukegan Police 

Department. He spoke Spanish in addition to English, and he used Spanish in about 85% of 

his work encounters.

¶ 10 On June 12, 2015, Hall was investigating defendant in Hall’s capacity as a task force officer 

with Homeland Security. “Information was given” to them that defendant was dealing 

narcotics and laundering money back to a Mexican cartel. The informant provided a name and 

phone number, which led the officers to defendant. Hall admitted that the investigation 

synopsis did not identify the subscriber of the phone number. The officers looked up defendant 

in the “system” and found out that he had previously been under investigation for cannabis 

smuggling and money laundering. Eric Powell, an immigration officer assigned to the narcotics 

group, determined that defendant was in the United States illegally.

¶ 11 Hall and Officer James Lindley conducted surveillance on defendant in Aurora. They were 

wearing plain clothes and in an unmarked police car, but Hall wore a bulletproof vest that said 

“Police.” The officers saw defendant make several trips to a Bank of America branch and then 

saw him go into a Walgreens. When defendant exited the Walgreens, Hall and Lindley 

approached defendant on foot. They were off to the side of the parking lot, and they were not 

next to defendant’s vehicle. Hall spoke to defendant in Spanish. He identified himself and 

asked defendant if he was Gilberto Montes. Defendant said yes, and Hall asked him for 

identification. Neither officer told defendant to stop or asked if his name was Flores. However, 

in his testimony, Hall admitted that he was conducting an investigatory stop and that defendant 

was not free to leave. Defendant’s identification listed his address as 609 South Lake Street. 

Hall told defendant that he was under investigation for being in the country illegally. Powell 

then arrived, and he verified that defendant was in the country illegally. Neither officer said 

that defendant’s identification was “garbage” or that he did not live at 609 South Lake Street.

¶ 12 Hall then took defendant into custody and advised him of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966). Hall placed defendant in handcuffs and told him that he was 

under investigation for cannabis smuggling and money laundering. Hall also told defendant 

that they believed that he was selling cannabis from his house. Defendant said that he lived at 

1075 Lisa Boulevard. He said that he had no cannabis in the house and that the police could 

check the house if they wanted to. To clarify, Hall asked defendant if the police could go to his 
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house and check, and defendant replied in the affirmative. Hall therefore believed that 

defendant gave verbal consent to search the residence. They placed defendant in the backseat 

of Powell’s car and drove there. The officers asked if defendant wanted to leave his truck at 

Walgreens, and he requested that they bring it back to the residence because his dog was inside. 

The officers did not search the vehicle at the time, but they later searched it and found 

marijuana.

¶ 13 At the house, the three officers and defendant walked up to the front door. Defendant 

showed Hall which key opened the door, and they went inside. The officers found money and 

narcotics ledgers in a hidden compartment in the bathroom and two kilograms of cocaine 

hidden underneath a chair.

¶ 14 During the hearing, Hall identified a consent-to-search form used by Homeland Security 

and testified that he or another agent might have had such a form with them during the 

encounter with defendant. He did not use a form with defendant because defendant gave verbal 

consent to search the house. The form used specific language regarding consent and informed 

the signatory that he had a right to refuse. When using the form, Hall would write his own 

name where it stated, “ICE special agent,” list the property, and require the individual’s 

signature. The acknowledgement in the form stated, “I hereby voluntarily and intentionally 

consent to allow ICE to search my property” and noted that the consent was freely given.

¶ 15 We summarize defense counsel’s closing argument on the motion to suppress. The State 

did not meet its burden. A form documenting voluntary consent is specific and unique, and the 

officers’ failure to use one showed that the search was not done in the proper manner. The 

officers obtained defendant’s statement that they could “check” the house, but that statement 

was ambiguous. Nothing in the record indicated that defendant understood his rights, including 

that he had the right to refuse to consent. The failure to document his consent should indicate 

to the court that defendant was not consenting freely and voluntarily. Counsel concluded by 

stating, “at this point, we’re only talking about the search of the home, the Court should 

suppress the evidence that was encountered inside the home.”

¶ 16 The trial court stated:

“The court finds that the officers had done an investigation prior to this particular 

date and that the Department of Homeland Security held the belief that the defendant 

was in the United States illegally.

The court further finds that the officer made a legal stop on the defendant in the 

parking lot at the Walgreens; that the officers placed him into custody and read the 

defendant his Miranda rights.”

The trial court continued as follows. Hall’s testimony was very credible and believable. There 

were only three officers with defendant. The officers searched defendant’s house without a 

search warrant or signed consent. However, defendant gave verbal consent for the search while 

he was in the Walgreens parking lot, after being informed of his Miranda rights. Therefore, 

the trial court denied defendant’s motion to suppress.

¶ 17 B. Bench Trial

¶ 18 A bench trial took place on September 28, 2017. We summarize the testimony of Lindley. 

On June 12, 2015, he was working as a task force officer “with the Chicago narcotics group at 

Homeland Security investigations.” He and Hall approached defendant in the Walgreens 
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parking lot. Lindley said only “hi” or “hello” because he did not speak Spanish; Hall 

communicated with defendant in Spanish. After conversing with defendant, Hall informed 

Lindley that he had obtained permission from defendant to search defendant’s residence, so 

they proceeded to 1075 Lisa Boulevard. Lindley walked up to the front door with Hall and 

“Agent Paul.” Hall had a conversation with defendant, in which Hall showed defendant a key, 

and Hall then opened the door.

¶ 19 The residence contained two bedrooms and a bathroom. The police found $15,100 and 

“books” hidden under the bathroom sink. In the northwest bedroom, they found two brick-like 

objects hidden under a piece of wood on the bottom of a chair. The parties stipulated that the 

objects consisted of a substance containing cocaine that weighed a total of 999.8 grams. Based 

on Lindley’s training and experience, he estimated the street value of the cocaine at between 

$100 and $120 per gram. A user typically purchased 3.5 grams at the higher end, which was 

called an “8-ball,” or purchased 1 or 2 grams at the lower end. Therefore, a typical user would 

not have 999.8 grams of cocaine. The street value of the cocaine was $236,000.

¶ 20 The closet in the northwest bedroom had male clothing, but less than a typical amount. The 

closet also contained a foreign driver’s license and a Bank of America document with 

defendant’s name, both of which listed the 609 South Lake Street address. The police also 

found defendant’s birth certificate in the bedroom.

¶ 21 There was a minimal amount of female clothing in the southwest bedroom, but no female 

personal care products in the bathroom. In the basement, the police found items commonly 

used in distributing narcotics and for money laundering, namely a “FoodSaver” machine and 

“FoodSaver” bags (which Lindley stated are “utilized to place amounts of narcotics or money 

into a plastic bag and then all the air is sucked out, so it compresses it, and it’s easy to be 

delivered or concealed”), a bag of rubber bands, a box of gallon-size “slider” bags, and green 

plastic wrap. A Jeep was inside the one-car garage. The Jeep’s title was on the kitchen counter, 

and it listed the owner’s name as a female with a different address. The Jeep had a hidden 

compartment activated by pistons, but police found only a towel inside. The house as a whole 

had “minimal items” and there were not basic things like a kitchen table.

¶ 22 An officer testified that a narcotics-sniffing dog alerted to a truck outside the house, to one 

of the bedrooms, to underneath the bathroom cabinet, and to the floorboard of the back hatch 

of the Jeep.

¶ 23 In addition to testifying consistently with his testimony from the hearing on the motion to 

suppress, Hall further testified as follows. He had been employed with the Waukegan Police 

Department since 2001 and by Homeland Security since 2007. After defendant produced his 

identification outside of the Walgreens, Hall advised him that there was an investigation in 

reference to him dealing in cannabis and money laundering from his house on 1075 Lisa 

Boulevard. Defendant denied engaging in these activities and said that the police could go 

there and check.

¶ 24 Hall testified to the items recovered from the house, specifying that a notebook found under 

the sink was determined to be a ledger. The only furniture in the northwest bedroom was a bed 

and a chair. Hall went outside and asked defendant about the money found in the bathroom, 

and he “said it was the girls [sic] who lived at the house.” He said that a woman resided there 

but was currently in Mexico. Defendant said that he slept in the northwest bedroom and that 

all of his clothes were there. When confronted about the cocaine that the police found, 

defendant said that he did not know about the cocaine and that it was not his. He said that he 
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was a landscaper and was not involved in narcotic sales. Hall never returned to the property to 

speak to any female. Also, the police did not find any cannabis for distribution at the house.

¶ 25 The trial court found as follows. The State’s witnesses were very credible and very 

believable. There was substantial evidence tying defendant to the address that was searched, 

including a birth certificate, banking documents, and other documents. The documents 

included defendant’s name, and some included his picture. Although the documents listed a 

different address, they were found at the location that the police searched, in close proximity 

to the contraband and currency. Further, defendant had a key to the premises, and he gave it to 

the officers so that they could conduct the search, which they did with his consent. The cocaine 

weighed over 900 grams, a volume someone in the cocaine trafficking business would typically 

possess, as opposed to a user. The trial court found defendant guilty beyond a reasonable doubt 

of both counts.

¶ 26 After the trial court made its ruling, the parties and the trial court agreed to extend the time 

for defendant to file a posttrial motion to November 1, 2017. On that date, the trial court 

continued the hearing to November 2, 2017.

¶ 27 On November 2, 2017, defendant filed a motion for a new trial, in which he included the 

argument that the trial court erred in denying his motion to suppress. A hearing on the motion 

took place on March 21, 2018. Defense counsel argued, among other things, that they “had 

early alleged that it was an illegal arrest, but [he thought that] the fact that the defendant didn’t 

have any immigration status in the United States probably vitiate[d] that argument, so [he 

would] turn to the next step.” Counsel then argued that defendant was not presented with a

written consent-to-search form, nor was his verbal consent to search recorded in any manner. 

Counsel also argued that there was no direct or circumstantial evidence that defendant knew 

about the cocaine hidden in the chair. The trial court denied the motion for a new trial.

¶ 28 On June 22, 2018, following a sentencing hearing, the trial court ruled that count II merged 

into count I. It sentenced defendant to 15 years’ imprisonment, which was the statutory 

minimum, followed by 3 years’ mandatory supervised release. The trial court also imposed 

various costs, fines, and fees. Defendant timely appealed.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant first argues that the trial court erred in denying his motion to suppress 

evidence. At a hearing on a motion to suppress, the defendant must make a prima facie case 

that the evidence was obtained by an illegal search or seizure. People v. Brooks, 2017 IL 

121413, ¶ 22. Where the defendant was searched and seized without a warrant, he may make 

his prima facie case by showing that he was doing nothing unusual or suspicious to justify the 

police in taking such action without a warrant. People v. Carter, 2019 IL App (1st) 170803, 

¶ 18. If the defendant meets this burden, the burden shifts to the State to present evidence to 

counter the defendant’s prima facie case. People v. Davis, 2019 IL App (1st) 181492, ¶ 20. 

Still, the ultimate burden of proof remains with the defendant. Id.

¶ 31 When reviewing a ruling on a motion to suppress, we defer to the trial court’s factual 

findings and reverse those findings only if they are against the manifest weight of the evidence. 

People v. Hill, 2020 IL 124595, ¶ 14. Such deference is based on the recognition that the trial 

court is in a superior position to determine and weigh the witnesses’ credibility, observe their 

demeanor, and resolve conflicts in their testimony. People v. McDonough, 239 Ill. 2d 260, 266 

(2010). However, we review de novo the ultimate legal ruling on the motion to suppress. Hill, 
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2020 IL 124595, ¶ 14. Moreover, in reviewing the trial court’s ruling on a motion to suppress, 

we may consider evidence presented at both the suppression hearing and the trial. People v. 

Hood, 2019 IL App (1st) 162194, ¶¶ 38-39.

¶ 32 Defendant argues that, even though he and Hall offered contradictory testimony at the 

hearing on the motion to suppress, he accepts Hall’s version of events for purposes of appeal, 

meaning that we should review de novo the legal conclusions derived from Hall’s testimony. 

We therefore accept Hall’s version of events as true for purposes of this appeal.

¶ 33 On the merits, defendant maintains that he was arrested when the police handcuffed him 

and read him his Miranda rights. Defendant argues that he presented evidence that he was not 

doing anything unusual when the police arrested him and that they lacked a warrant, which 

shifted the burden to the State to prove that there was probable cause for the arrest. See People 

v. Grant, 2013 IL 112734, ¶ 11 (an arrest without a warrant is valid only if it is supported by 

probable cause to arrest). Defendant notes that the State took the position that defendant was 

arrested for being in the United States illegally and that the trial court found that defendant was 

lawfully seized in the parking lot for this reason. Defendant argues, however, that the police 

lacked probable cause to arrest him, because his being in the United States illegally was not a 

crime.

¶ 34 Defendant cites Arizona v. United States, 567 U.S. 387, 407 (2012), where the Supreme 

Court stated:

“As a general rule, it is not a crime for a removable alien to remain present in the 

United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). If the police 

stop someone based on nothing more than possible removability, the usual predicate 

for an arrest is absent.”

Defendant also cites two cases that cited Arizona. In United States v. Meza-Rodriguez, 798 

F.3d 664, 673 (7th Cir. 2015), the court stated, “unlawful presence in the country is not, without 

more, a crime.” In Parada v. Anoka County, 332 F. Supp. 3d 1229, 1243 (D. Minn. 2018), the 

court stated, “It is clearly established that a warrantless arrest must be supported by probable 

cause of criminal activity, that unlawful presence is not a crime, and that an immigrant’s 

possible removability is insufficient to give rise to probable cause.”

¶ 35 Defendant additionally argues that, regardless of whether illegal presence in the United 

States is generally sufficient to establish probable cause, the State failed to meet this burden. 

Defendant notes that probable cause to arrest exists if the arresting officer knows facts that 

would be sufficient to lead a reasonably cautious person to believe that the arrestee has 

committed a crime. See Grant, 2013 IL 112734, ¶ 11; see also 725 ILCS 5/107-2(1)(c) (West 

2014). Defendant also notes that the probable cause inquiry is based on an objective analysis, 

as opposed to the subjective beliefs of the officer (see People v. Lee, 214 Ill. 2d 476, 484-85 

(2005)), and that a mere hunch or suspicion is not enough (see People v. Drake, 288 Ill. App. 

3d 963, 967 (1997)). Defendant argues that whether the officers had a subjective belief that he 

was in this country illegally is not relevant but that, rather, the State needed to and failed to 

show that the officers had knowledge of objective facts to show a probability that he had 

committed a crime. Defendant argues that Hall’s testimony regarding the investigation of 

defendant’s alleged drug dealing and money laundering was insufficient, as the testimony was 

based on just a hunch or suspicion and the State presented no objective facts to show that he 

was involved in any narcotics enterprise. Defendant highlights that, in any event, his alleged 

drug trafficking was not used by the police or the State as a basis for probable cause for his 
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arrest. Defendant then proceeds to argue that his unconstitutional arrest vitiated his consent to 

search his home and requires suppression of evidence found therein, under the fruit of the 

poisonous tree doctrine.

¶ 36 The State’s initial reply is that defendant failed to make a prima facie case on his motion 

to suppress, because defendant testified that the officers had a warrant to arrest him. The State’s 

argument is without merit, as defendant testified that the officers told him that they had a 

warrant for his arrest for selling marijuana. The officers never claimed in their testimony that 

they actually had a warrant to arrest defendant, and Hall’s testimony indicated that he arrested 

defendant for being in the country illegally.

¶ 37 The State next argues that the initial encounter between the officers and defendant was 

consensual or was a proper stop under Terry v. Ohio, 392 U.S. 1 (1968). However, regardless 

of how the initial encounter can be labeled, it is clear that defendant was arrested when he was 

handcuffed and read his Miranda rights, and the issue here is whether Hall had probable cause 

to arrest him. Defendant met his burden of making a prima facie case by showing that he was 

not doing anything unusual at the time of his warrantless arrest. Carter, 2019 IL App (1st) 

170803, ¶ 18. Therefore, the burden shifted to the State to produce evidence justifying the 

intrusion. People v. Thornton, 2020 IL App (1st) 170753, ¶ 23.

¶ 38 The State argues that any error in the trial court using defendant’s immigration status as a 

basis to find probable cause for arrest was invited error because, at the hearing on defendant’s 

motion for a new trial, defense counsel argued that they “had early alleged that it was an illegal 

arrest, but [he thought that] the fact that the defendant didn’t have any immigration status in 

the United States probably vitiate[d] that argument, so [he would] turn to the next step.” The 

State argues that, having conceded defendant’s lack of immigration status in the United States 

and the fact that it impaired the validity of his argument, defendant procured the trial court 

ruling that he now charges as error. The State cites People v. Liekis, 2012 IL App (2d) 100774, 

¶ 24, where the court stated that the doctrine of invited error or acquiescence is a form of 

procedural default or estoppel that provides that a party may not request that the court proceed 

in one manner and then argue on appeal that the requested action was error.

¶ 39 The State alternatively argues that the officers’ reasonable suspicion of criminal activity 

developed into probable cause. It argues that the officers had information that defendant was 

engaged in drug smuggling and money laundering, that the officers saw defendant engage in 

the unusual activity of going to the bank several times in one day, and that defendant’s multiple 

addresses, as shown by an address on his identification that was different from that with which 

he was associated, showed that it was more probable than not that defendant was engaged in 

money laundering. The State argues that once defendant provided his identification and Hall 

had reasonably trustworthy information from Powell that defendant was in the United States 

illegally, there was evidence to establish that it was more probable than not that defendant 

committed a federal criminal immigration offense and/or a money laundering offense and to 

provide probable cause to arrest defendant. See 8 U.S.C. § 1325 (2012) (unlawful entry); 8 

U.S.C. § 1326 (2012) (unlawful reentry). The State argues that, even under suspicion of an 

alien being removable, the officers, working for Homeland Security and in conjunction with 

an immigration officer, had the authority to make a warrantless arrest of defendant where he 

was likely to escape before a warrant could be obtained (see 8 U.S.C. § 1357(a)(2) (2012)), 

especially since there were multiple addresses attached to defendant.
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¶ 40 The State argues that Arizona is inapposite because the statute at issue in that case 

addressed the ability of local officers to make arrests for removability under civil immigration 

law, rather than for criminal immigration violations. The State points out that the United States 

Supreme Court stated in Arizona that it was not addressing whether a federal immigration 

crime would be a legitimate basis for prolonging detention. Arizona, 567 U.S. 387 at 414-15. 

The State cites subsequent cases distinguishing arrests for civil removability from arrests for 

federal criminal immigration offenses. It maintains that the officers in this case had the implicit 

authority to arrest suspects for federal offenses, including violations of criminal immigration 

laws. The State argues that Arizona is further distinguishable because here members of a 

Homeland Security task force were working alongside an immigration officer.

¶ 41 We conclude that defendant’s actions in the trial court preclude him from arguing on appeal 

that the officers lacked probable cause to arrest him for an immigration violation. Section 114-

12(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(b) (West 2016)), which 

includes requirements for motions to suppress, states: “The motion shall be in writing and state 

facts showing wherein the search and seizure were unlawful. The judge shall receive evidence 

on any issue of fact necessary to determine the motion and the burden of proving that the search 

and seizure were unlawful shall be on the defendant.” In Ramirez, the court stated:

“ ‘A motion to suppress is, in effect, a pleading to the extent that it frames the issues 

to be determined in a pretrial hearing on the motion. The fundamental role of a pleading 

is to give an opposing party notice of the pleader’s position concerning the facts and 

law so that the opposing party can begin to prepare his defense. A pleading thus both 

defines and limits the areas of consideration at a trial or other evidentiary hearing ***, 

by enabling the court to determine the relevance of offered evidence.’ ” People v. 

Ramirez, 2013 IL App (4th) 121153, ¶ 60 (quoting State v. Johnson, 519 P.2d 1053, 

1057 (Or. Ct. App. 1974)).

¶ 42 Here, defendant argued in his motion to suppress that “the arresting officers had no warrant 

for [his] arrest and were not authorized under any provision of the law to affect such an arrest.” 

Defendant made no specific mention of the officers lacking probable cause to arrest for his 

being in the country illegally. Because defendant’s motion to suppress did not specify the 

immigration issue as a reason to suppress evidence, defendant did not give the State notice 

regarding what his position was as to the facts and the law such that it could prepare a full 

defense, contrary to the principles discussed in Ramirez, 2013 IL App (4th) 121153, ¶ 60.

¶ 43 In opening argument at the hearing on the motion to suppress, defense counsel argued that 

the officers learned that defendant was in the country illegally after they placed him in custody. 

Counsel characterized the immigration issue as “really not one of the issues in the case at this 

point, but [he] guess[ed] it [was] a sub-issue.” More significantly, after hearing testimony that 

the police learned of defendant’s illegal status before arresting him, in closing argument 

counsel abandoned the subject by not even mentioning the immigration issue as a reason to 

grant the motion to suppress. In fact, counsel did not address probable cause for arrest as a 

disputed point. Rather, he focused entirely on the issue of defendant’s consent to search the 

home, saying, “at this point, we’re only talking about the search of the home, the Court should 

suppress the evidence that was encountered inside the home.”

¶ 44 Had defendant properly set forth the issue in the trial court, the State could have explored 

it further through more specific questioning of witnesses, both at the hearing on the motion to 

suppress and at trial. See Hood, 2019 IL App (1st) 162194, ¶¶ 38-39 (in reviewing the trial 
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court’s ruling on a motion to suppress, we may consider evidence presented at both the 

suppression hearing and the trial); see also People v. Hughes, 2015 IL 117242, ¶ 38 (“new 

factual theories on appeal deprive the formerly prevailing party of the opportunity to present 

evidence on that point”).

¶ 45 Adding to this, at the hearing on the motion for a new trial, defense counsel conceded the 

argument by stating that they “had early alleged that it was an illegal arrest, but [he thought 

that] the fact that the defendant didn’t have any immigration status in the United States 

probably vitiate[d] that argument, so [he would] turn to the next step.” We agree with the State 

that this concession amounts to invited error. Under the invited error doctrine, a defendant 

cannot complain of error that he or she induced the trial court to make, or to which he or she 

consented. People v. Lawrence, 2018 IL App (1st) 161267, ¶ 52. In other words, because 

counsel conceded that the officers had probable cause to arrest defendant for being in the 

country illegally, defendant cannot complain on appeal that the trial court erred in denying the 

motion to suppress on this basis. See also Hughes, 2015 IL 117242, ¶ 38 (the defendant’s 

posttrial motion and argument on that motion was not sufficient to give the trial court any 

indication that the focus was the issue the defendant later asserted on appeal).

¶ 46 Defendant cites People v. Heider, 231 Ill. 2d 1 (2008), for the proposition that defense 

counsel adequately preserved the issue in the lower court. There, the question was whether the 

defendant had preserved for review his argument that the trial court improperly considered his 

mental impairment as an aggravating factor in sentencing. Id. at 18. The supreme court stated 

that the purpose of requiring an objection in the trial court is to give the trial court the 

opportunity to review the defendant’s claim and save the expense and delay of an appeal if the 

claim is meritorious and to prevent the litigant from asserting on appeal an objection that is 

different from the one he raised below. Id. Our supreme court concluded: “In circumstances 

such as these, where the trial court clearly had an opportunity to review the same essential 

claim that was later raised on appeal, this court has held that there was no forfeiture.” Id.

¶ 47 Defendant asserts that he preserved his argument because his motion to suppress evidence 

argued that the arrest was illegal and the trial court found that the officers properly arrested 

him for being in the United States illegally.

¶ 48 Defendant’s argument is not persuasive.2 Again, defendant did not specify in his motion 

to suppress that he believed that the officers lacked probable cause to arrest him for being in

the country illegally. Defense counsel briefly raised the subject in his opening argument at the 

hearing on the motion to suppress, but he then abandoned the issue by not even referencing it 

in closing argument, instead arguing only about the consent to search. The trial court 

mentioned defendant being in the United States illegally as a basis for the arrest, but it was 

stated in passing, as opposed to being discussed as a disputed point. Unlike in Heider, because 

defendant failed to sufficiently assert his argument, the State could neither question witnesses 

more in depth about the subject at the hearing on the motion to suppress and at the trial nor call 

2

In conjunction with defendant’s ineffective assistance of counsel argument, the State does not 

contest that defendant alerted it to his argument that his arrest was unauthorized; the State instead relies 

exclusively on the invited-error doctrine. However, courts of review are not bound even by a party’s 

concession (People v. Carter, 2015 IL 117709, ¶ 22), and we conclude that defendant failed to 

sufficiently raise the issue of lack of probable cause to arrest him for being in the United States illegally, 

in addition to later inviting the alleged error.
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additional witnesses such as Powell, thus resulting in an incomplete record on the question. 

The situation is additionally distinguishable from Heider because here defense counsel further 

conceded the argument by stating at the hearing on his posttrial motion that they “had early 

alleged that it was an illegal arrest, but [he thought that] the fact that the defendant didn’t have 

any immigration status in the United States probably vitiate[d] that argument, so [he would] 

turn to the next step.”

¶ 49 As our supreme court stated in Hughes, 2015 IL 117242, ¶ 46:

“By declining or failing to raise these claims below, defendant deprived the State of 

the opportunity to challenge them with evidence of its own, he deprived the trial court 

of the opportunity to decide the issue on those bases, and he deprived the appellate 

court of an adequate record to make these determinations. To consider such claims 

preserved would also multiply litigation by motivating parties to address at trial all 

conceivable arguments that might later be made and by forcing the trial court to 

consider not only the arguments made by counsel, but all arguments counsel might 

have made.”

See also People v. Pettis, 2016 IL App (4th) 140469, ¶ 27 (the defendant forfeited his argument 

on appeal about reasonable suspicion where he did not make the argument in his motions to 

suppress or in his oral argument to the trial court at the suppression hearing). Accordingly, we 

conclude that defendant did not adequately preserve for review and further conceded the issue 

of whether the officers had probable cause to arrest him for being in this country illegally.

¶ 50 Based on this resolution, we do not address defendant’s argument that his unconstitutional 

arrest nullified his consent to search his home and required suppression of evidence found 

therein, under the fruit of the poisonous tree doctrine.

¶ 51 Recognizing that we might conclude that he did not adequately preserve the issue of 

probable cause for review, defendant alternatively argues that defense counsel was ineffective 

for failing to do so. For a claim of ineffective assistance of counsel, a defendant must satisfy

the two- pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. 

Hodges, 234 Ill. 2d 1, 17 (2009). The defendant must first establish that, despite the strong 

presumption that trial counsel acted competently and that the challenged action was the product 

of sound trial strategy, counsel’s representation fell below an objective standard of 

reasonableness under prevailing professional norms such that he or she was not functioning as 

the counsel guaranteed by the sixth amendment. People v. Manning, 227 Ill. 2d 403, 416 

(2008). Second, the defendant must establish prejudice. People v. Valdez, 2016 IL 119860, 

¶ 14. In most situations, this is done by showing a reasonable probability that the proceeding 

would have resulted differently absent counsel’s errors. Id. However, where the claim of 

ineffectiveness is based on counsel’s failure to file a motion to suppress, the defendant must 

establish prejudice by showing that the unargued suppression motion was meritorious, 

meaning that it would have succeeded, and that there is a reasonable probability that the trial 

outcome would have been different had the evidence been suppressed. People v. Henderson, 

2013 IL 114040, ¶¶ 12, 15. A failure to establish either prong of the Strickland test precludes 

a finding of ineffectiveness. People v. Peterson, 2017 IL 120331, ¶ 79.

¶ 52 Defendant contends that a lack of probable cause based on his illegal presence in the United 

State would have been a meritorious argument if defense counsel had raised the issue in the 

trial court because illegal presence is not a crime and because the police did not have objective 

facts that would cause a reasonably cautious person to believe that he was in the country 
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illegally or that he committed a crime. According to defendant, counsel could have successfully 

argued that the police used the unlawful arrest and surrounding circumstances to exploit him 

into giving consent to search his home, rendering the consent involuntary. The trial court would 

have then suppressed the illicit fruits of the unlawful arrest and warrantless search, being the 

cocaine and other incriminating evidence found within the home. Defendant further contends 

that the State would not have had any evidence to obtain a conviction, such that the charges 

against him would likely have been dismissed. Defendant argues that we should therefore 

reverse his convictions and vacate his sentence outright, without remand for a new trial.

¶ 53 The State argues that defense counsel did file a motion to suppress arguing that the arrest 

was unauthorized and that, though he later invited the error now raised on appeal, defendant’s 

ineffective assistance argument does not address the invited error, thereby resulting in 

forfeiture of the issue on review. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). The State 

asserts that, even otherwise, defendant cannot show ineffective assistance of counsel because 

the motion would have been futile in that the police had probable cause to arrest defendant for 

a crime, as the State previously argued. See supra ¶¶ 40-41.

¶ 54 Defendant responds that Arizona does not make the civil-criminal distinction urged by the 

State. He argues that local law enforcement did not have the authority to arrest him for being 

in this country illegally because such enforcement usurps the federal statutory scheme, which 

usually requires the Attorney General to issue a warrant to authorize an arrest. Defendant 

contends that, even if the State’s criminal-civil distinction carries weight, the State did not 

show that the police had probable cause for a reasonably cautious person to believe that he 

committed a federal criminal immigration law violation. Defendant argues that the record 

reveals no objective facts known to the officers to suggest that he committed a federal criminal 

offense but, rather, only a belief that he was in this country illegally.

¶ 55 If the State is correct that the officers had probable cause to arrest defendant for drug 

smuggling and money laundering, our inquiry would end here. However, we conclude that 

there was not sufficient evidence of such crimes to amount to probable cause. The officers 

received a tip from an informant, but probable cause cannot be based on an uncorroborated tip 

from an unidentified informant, even where the tip specifically identifies an individual. People 

v. Wise, 2019 IL App (2d) 160611, ¶ 59. Defendant had previously been under investigation 

for cannabis smuggling and money laundering, but this would amount to only suspicion of a 

crime. The fact that he made multiple trips to the bank and that he had an old address on his 

driver’s license would not lead a reasonably cautious person to believe that he had engaged in 

drug smuggling or money laundering.

¶ 56 As such, we turn to whether the officers had probable cause to arrest defendant for being 

in the United States illegally. Defendant relies exclusively on Arizona in answering this 

question in the negative. At issue in Arizona was whether four separate provisions of Arizona 

state law were preempted by federal immigration law. Arizona, 567 U.S. at 394, 398. One 

provision gave state and local law enforcement officers the authority to arrest a person without 

a warrant if the officers had probable cause to believe that the person had committed a public 

offense that made him removable from the country. Id. at 394. The United States Supreme 

Court stated that, “[a]s a general rule, it is not a crime for a removable alien to remain present 

in the United States. [Citation.] If the police stop someone based on nothing more than possible 

removability, the usual predicate for an arrest is absent.” Id. at 407. It stated that, under the 

federal statutory structure, the attorney general may issue a warrant for an arrest, and, where 
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no federal warrant has been issued, federal officers have more limited authority. Id. at 408. For 

example, they may arrest an alien for being in the United States in violation of any immigration 

law or regulation, but only where the alien is likely to escape before the warrant can be 

obtained. Id. The Court stated that the Arizona law attempted to provide state officers with 

“even greater authority to arrest aliens on the basis of possible removability than Congress 

[had] given to trained federal immigration officers.” Id. The Court therefore concluded that 

this provision of the Arizona law was preempted by federal law. Id. at 410.

¶ 57 In arriving at its conclusion, the Court acknowledged that there was a federal statute 

permitting state officers to cooperate with the Attorney General to identify, apprehend, detain, 

or remove aliens not lawfully present in the United States. Id. (citing 8 U.S.C. § 1357(g)(10)(B)

(2012)). It stated that Homeland Security gave examples of what would constitute cooperation 

under federal law, which included “situations where States participate in a joint task force with 

federal officers.” Id. The Court stated that, although there might be some ambiguity as to what 

constituted cooperation under federal law, it would not “incorporate the unilateral decision of 

state officers to arrest an alien for being removable absent any request, approval, or other 

instruction from the Federal Government.” Id.

¶ 58 Thus, even on its face, Arizona is distinguishable from the situation here, as Arizona 

involved state and local officers attempting to unilaterally enforce civil immigration violations 

of federal law. In contrast, Hall and Lindley were working as task force officers of a narcotics 

group with Homeland Security, and the group also included an immigration officer. Hall 

additionally testified that, had he used a Homeland Security consent to search form, he would 

have written his name where it stated “ICE special agent”; this could indicate his involvement 

with immigration enforcement. At a minimum, the officers’ work with Homeland Security 

could arguably fall into the type of cooperation with the federal government mentioned as 

permissible in Arizona. Defendant does not acknowledge this distinction or cite authority 

further discussing the subject. See People v. Bailey, 2019 IL App (3d) 180396, ¶ 22 (a 

reviewing court is not a repository into which an appellant may foist the burden of argument 

and research, nor is it our function or obligation to act as an advocate, and the failure to clearly 

define issues and support them with authority results in forfeiture of the argument).

¶ 59 Further, there is support within Arizona for the State’s argument that Arizona was 

addressing only civil immigration violations, as opposed to criminal immigration violations. 

While discussing another provision of the Arizona law, the Court stated in Arizona that there 

was “no need in this case to address whether reasonable suspicion of illegal entry or another 

immigration crime would be a legitimate basis for prolonging a detention, or whether this too 

would be pre-empted by federal law.” Arizona, 567 U.S. at 414. The Fourth Circuit has stated: 

“Lower federal courts have universally—and we think correctly—interpreted Arizona v. 

United States as precluding local law enforcement officers from arresting individuals solely 

based on known or suspected civil immigration violations.” (Emphasis added.) Santos v. 

Frederick County Board of Commissioners, 725 F.3d 451, 464 (4th Cir. 2013). As Arizona 

dealt exclusively with civil immigration violations, there is support for the proposition that 

even local law enforcement agencies may enforce criminal immigration-related laws. See, e.g., 

Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012); Macareno v. Thomas, 378 F. Supp. 

3d 933, 942 (W.D. Wash. 2019); Davila v. Northern Regional Joint Police Board, 370 F. Supp. 

3d 498, 546 (W.D. Penn. 2019) (“It has been long-settled that local law enforcement agencies 

may enforce criminal immigration violations, but lack the authority to enforce civil violations.” 
- 14 -

(Emphasis in original.)). Although defendant argues that the record does not show that the 

officers had information that he committed a federal criminal immigration offense, this is 

because defendant did not sufficiently raise the issue in the trial court, such that an adequate 

record could be developed to resolve this question.

¶ 60 As stated, where a defendant’s claim of ineffective assistance of counsel is based on the 

failure to file a motion to suppress, the defendant must demonstrate prejudice by showing that 

the unargued suppression motion would have succeeded and that there is a reasonable 

probability that the trial outcome would have been different. Henderson, 2013 IL 114040, 

¶¶ 12, 15. Our supreme court stated in Henderson that, with such a claim, “the record will 

frequently be incomplete or inadequate to evaluate that claim because the record was not 

created for that purpose.” Id. ¶ 22.

¶ 61 In this case, there is no question that the trial would have resulted differently without the 

evidence seized from defendant’s home, as that evidence formed almost the entirety of the 

State’s case. Thus, the question is whether the motion to suppress would have been granted 

had defense counsel adequately raised and preserved the issue of whether the officers had 

probable cause to arrest defendant for being in the United States illegally. However, because 

counsel did not sufficiently raise the subject at trial, and based on appellate counsel’s singular 

reliance on Arizona, the record is inadequate to evaluate this claim. As discussed, we do not 

know from the record whether the officers were relying on a civil or a criminal violation of 

immigration law, and Arizona additionally distinguished the situation before it from the type 

of federal-local law enforcement partnership that seemed to be present here. We are therefore 

unable to reach the merits of the issue. Cf. People v. Gayden, 2020 IL 123505, ¶¶ 29, 36 (record 

did not have sufficient information about the circumstances of the defendant’s arrest from 

which the court could determine whether a motion to suppress would have been meritorious 

and therefore could not determine if the defendant was prejudiced by his trial counsel’s failure 

to file a motion to suppress); People v. Williamson, 2018 IL App (3d) 150828, ¶ 30 (record 

was inadequate to evaluate ineffective assistance claim because there was no indication in the 

record as to why counsel abandoned the claim that there was not probable cause to search the 

defendant’s vehicle and because the record was insufficient to determine whether the claim 

would have succeeded had counsel pursued it at the suppression hearing). In instances like this 

one, “the ineffective assistance claim may ‘be better suited to collateral proceedings’ ” where 

the record may be adequately developed. Williamson, 2018 IL App (3d) 150828, ¶¶ 29, 34 

(quoting People v. Veach, 2017 IL 120649, ¶ 46).

¶ 62 III. CONCLUSION

¶ 63 For the reasons stated, we affirm the judgment of the Kane County circuit court.

¶ 64 Affirmed.