## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Fitzpat rick , 2013 IL 113449

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellee, v. L EWI S C. FI TZ PATRI CK, Appellant.

Docke t No. 113449

Filed April 4, 2013

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e

rea der

. ) A motion to suppress was properly denied wher e drug s wer e found on the person of a defe ndant afte r he was arr ested for a petty offe nse and broug ht to the police station, b ut wh ere he neither demonstrated any long- standing I llinois tradition requiring suppression nor any other exception to the doctrine that the sear ch and se izure clause of the I llinois Constitution is construed the same a s that of the Constituti on of the United States.

Dec ision Under Review Appea l from the Appellate Court for the Second Di s trict; hear d in that court on appea l from the Circuit Court of L ake County , the Hon. Geor g e Br idge s, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, State Appellate Def ender
, Thomas A. L ilien, Deputy Def ender
, and Ba

rbar a R. Paschen, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Elg in, for appe llant.

L isa Madig an, Attorney Gene ral, of Spring field, and Michae l J. Waller, State’s Attorney , of Waukeg an (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Dre w Meyer, Assistant Attorney s Gene ral, of Chicag o, of counse l), for the People.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion. Chief J ustice Kilbride and J ustices Fr eema n, Gar man, Kar meier, Bur

ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 At issue is whether the circ uit court of L ake County err ed in denying defe ndant’s motion to suppress evidence, where the evidence was o btained pursuant to a search incident to an
arr est for a petty offe nse. We hold that the trial court did not err , beca use defe ndant did not meet his b u rd en o f s h owing that the arrest vi olated his rig hts under the sear ch and seizure clause of the I llinois Constitution (I ll. Const . 1970, art. I , § 6).

¶ 2 BA CKGROUND ¶ 3 The State char g ed defe ndant, L ewis C. Fitzpatrick, with possessing few er than 15 g rams of coca ine. Def

endant moved to suppr ess the evidenc e that was discovere d during a sear ch of his person afte r he was arr ested for a petty offe nse. Def endant alleg ed that subjecting him to an arr est for a petty offe nse violated his rig hts under the fourth amendment and the sear ch and seizure c lause of our

state constitution. ¶ 4 At the hear ing on the motion t o s up p re s s , Of fi ce r P aul Kehr li of the Z ion police depar tment testified that in J uly 2009, he observe d defe ndant and a co mp a n ion walking down the middle of 28th Street. Walking in the middle of the street is a v i o l at i o n o f section 11- 1007 of the I llinois Vehicle Code (625 I L CS 5/11-1007 (West 2010)), and it is classified as
a petty offe nse (625 I L CS 5/11-202 (West 2010)). Kehrli also testified that defe nd an t ’s conduct violated a muni cipal ordinance. Kehrli t estifi ed t h at h e had no specific belief that defe ndant was arme d, and defe ndant was not doing any thing threatening at the time. Kehr li conducte d a brief pat-down sear ch for wea pons and then place d defe ndant under arr est. As part of routine proce dure when someone is place d under arr est, defe ndant was sear ched for contra band at the police station. The police discove red c ocaine in defe ndant’s sock. ¶ 5 The trial court denied the motion to suppress. The court found that People v. Taylor , 388

-2-I ll. App. 3d 169 (2009), is the controlling law in the Second District. In Taylor
, the court held

that, pursuant to Atwater v. C ity of Lago Vista , 532 U.S. 318 (2001), an arr es t fo r a mi nor fine-only offe nse does not violate the fourth amendment. And, beca u s e t his court has construed the sear ch and seizure clause of the I llinois Constitution in limit ed lockstep with the fourth amendment (

People v. Caballes
, 221 I ll. 2d 282 ( 2006)), suc h an arr est does not violate the I llinois Constitution either. Taylor , 388 I ll. App. 3d at 176. ¶ 6 Def

endant ap p eale d, and the Appellate Court, Second District, aff irmed. 2011 I LApp (2d) 100463. That court acknow ledg ed that it had, in an ear lier decision, held that this court had implicitl y reje cted Atwater

. Id. ¶ 4 (discussing People v. Moorman , 369 I ll. App. 3d 187 (2006)) . Howeve r, the Sec ond District later disavow ed Moorman in Taylor and conc luded that this court had not implicitl y reje cted Atwater

. See Taylor
, 388 I ll. App. 3d at 176-78. In the prese nt case , the Second District continued to follow Taylor

. The court explained that I llinois fo l l o ws a “limited lockstep” approa ch and that none of the narr ow exceptions for depar ting from lockstep wer e prese nt in this case

. 2011 I L App (2d) 100463, ¶¶ 8-12. Acc ording ly , the cour

t upheld the denial of

the motion to suppress. ¶ 7 The court agree d with defe ndant that he should have been grante d a hearing on his a bility to pay a public defe nder fee befor e such a fee was imposed, and the court rema nded for such

a hear ing. The court reje cted defe ndant’s argument that such a rema nd was improper beca

use more than 90 da

y s had passe d since the e ntry of final judg ment. Id. ¶ 13. ¶ 8 We allowed defe ndant’s petition for leav e t o ap p ea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010).

¶ 9 ANALYSI S ¶ 10 Def

endant raises two issues on appea l: (1) that his motion to suppress should have been g rante d beca

use th e s ea rc h and seizure clause of the I llinois Constitution provides g reater protec tion than its fede ral counter part; and (2) that the appellate court err ed in rema nding the

cause for a hearing on defe ndant’s ability to pay a public defe nder fee
, as more than 90 day s had passe d since the e ntry of final judgment.

¶ 11 Motion to S uppress ¶ 12 Def

endant’ s first argument is that the trial court err ed in denying his motion to suppr ess beca use an a rre st for a petty offe nse is unr easona ble under the sear ch and seizure clause of the I llinois Constitution. Def endant conce des that the issue was settled for fourth amendment purpo ses by Atwater

. Howeve r, defe ndant argues that this court should hold that our state constitution provides g reater protec tion than the fourth amendment and prohibits full custodial arr ests for petty offe nses. Def endant acknow ledg es this court’s limit ed locks tep doctrine set forth in Caballes
, but argue s that this situation falls within the exceptions set forth in Caballes

. The State disag ree s wi t h d efe ndant, and contends that none of the exceptions set forth in Caballes apply to this situation. This is solely a question of law, and thus our revie w proc eeds de novo

. People v . W ashington , 2012 I L

110283, ¶ 19. ¶ 13 In Atwater , the defe ndant was arr ested for failingto wear a seat belt. Under Texas la w,

-3-this was a misdemeanor offe nse, punishable by a fine of betwee n $25 and $50. Atwater , 532

U.S. at 323-24. The police took the defe ndant to the police station in handcuf fs, took her mug shot, and then booked her into jail. Id. at 324. The defe ndant brought a section1983 suit (42 U.S.C. § 1983), alleging that the pol i ce and t he C ity of L ag o Vista had viol ated her fourth amendment r ight to be f

ree from unre asonable seizures. Atwater , 532 U.S. at 325. ¶ 14 The case rea ched the Supreme Court, wher e the Court held that the arr est did not violate th e fourth amendment. The Court framed the question befor e it as whether the fourth amendment plac ed any

restric tions on a police off icer ’s authority to a

rre st without warra

nt for minor criminal offe nses. Id. at 326. The Court ultimately conclude d that, “[i] f an office r has proba ble ca use to believe that an individual ha s committed e ven a very minor criminal offe nse in his prese nce, he may , without violating the Four th Amendment, arr est the offe nder.” Id. at 354. ¶ 15 In Caballes
, this court held t h at i t ap p l i es a “limited lockstep” approa ch to analy zing cognate provisions of t he I llinois Constitution of 1970 and the United S tates C onstitut ion. Caballes
, 221 I ll. 2d at 309-10. Under this approa ch, we will construe our constitution as providing g reater protec tion than its fede ral counter part when the following criter ia are met: “ ‘We must fi n d i n the languag e of our constitution, or in the debate s and the

com m i t t ee repor

ts of the constitutional convention, something which will indicate that the provisi ons of our c onstitut ion are intended to be construed differ ently than

are simil ar provisions in the Fe dera l Constitution, afte r which they are patterne d.’ ” Id . at 310 (quoting People v . Tisl er , 103 I ll. 2d 226, 245 (1984)). As this court noted in Caballes
, this court has done t h i s an al y sis for purposes of article I , section 6 , of our state constitution, and determined t hat the framer s intended for it to have the same scope as the fourth amendment. Id

. at 296-97 (quoting Tisl er , 103 I ll. 2d at 241-42). We rea ffirme d our commitment to this approa ch in Caballes ( id

. at 313-14), so the lockstep question is ge nera lly

settled for se arc h and seizure pur poses. ¶ 16 Ca b a l l es did note, howeve r, that our limit ed lockstep ap p ro ac h wo u l d al l o w fo r consideration of “state tradition and values as ref lected by long- standing state case prec edent.” Id . at 314. Thus, in People v

. W ashington
, 171 I ll. 2d 475 (1996), we he ld that

a fre estanding claim of actua l innocenc e based on newly discovere d evidenc e could be raised in a postconviction proce eding
, d espi te the holding in Herrera v. Colli ns , 506 U.S. 390 (1993), that such a claim was not cognizable as a violation of due proce ss in a fede ral habeas corpus proce eding

. We relied in part on this court’s previous willingness to look to this state’s historical approa ch to due proce ss questions. Id

. at 485-88. Simi larly
, in People v. Krueger , 175 I ll. 2d 60 (1996), this court held that it would not follow Illinois v. Krull
, 480 U.S. 340 (1987), which r ecognized a good-f aith exception to the exclusionary rule whe n a
s ea rc h was conducted pursuant to a st atute later held unconsti tutional. Krueger was ba s ed

on this state’s history of apply ing the exclusionary rule under the state constitution and also

a long- standing state tradition of ex cl u d i ng evidenc e obtained under the authority of an unconstitutional statute. Krueger , 175 I ll. 2d at 74-75. ¶ 17 Def

endant’ s argument is relatively narr ow. He likens his case to Krueger , in which this court held that it would not follow the United States Supreme C o u rt ’s decision in Krull

.

-4-Def endant maintains that just as there wer e in Krueger , there exis t here long- standing state history and traditions that compel the reje ction of Atwater

. Indeed, acc ording to defe ndant, adopting Atwater ’s interpr e ta ti o n h e r e w ould “as drastica lly chang e this state’s constitutional law” a s would have the adoption of Krull in Krueger

. ¶ 18 The problem with defe ndant’s argument, howeve r, is that he has not provided this court with an example of a long- standing state history and traditions a s strong as those that we re identified in Krueger

. Def endant conten d s , fo r example, that Atwater conflicts with this state’s traditions conce rning sear ches and seizures during traff ic stops, as ref

lected in People

v. W atkins
, 19 I ll. 2d 11 (1960). There
, the defe ndant soug ht to suppress evidenc e found afte r police arr ested him for parking too close to the sidewalk. Id. The court noted that the police

wer e justified in making the arr est beca use th e o ff

en s e was a misdemeanor and had been committed in police prese nce. Id. at 18. Notwithstanding that fac t, the court went on to note t h at such an arr est, wher e a ticket can be also left on the door handle, would not support a
sear ch incident to arr est. Id. at 19. Neve rtheless, the court found suppression unwar rante d beca use the sea

rch w as justified on other grounds. Id. at 19. ¶ 19 Def

endant’ s arg

ument today there fore focuse s on that portion of W atkins in which the court noted, in passi n g, that the arr est would not support a sear ch incident to arr est. He argues t h at the offe nse here is akin to the offe nse in W atkins and thus shows that I llinois historically has followed an analy sis differ ent from that in Atwater

. Def endant’ s contention, howeve r, overlooks the fac t that two y ear s afte r W atkins was issued, this court decide d People v. McD onald
, 26 I ll. 2d 325 (1962), in which an arr est for a fine-only offe nse and a
sear ch incident to that arr est we re upheld as justified. Thus, since 1962, I llinois has consistently rec og nized that police are allowed to c onduct a custodial sear ch afte r an arr est for a traff ic or pe tty offe nse. In fac t, in People v . Hoskins , 101 I ll. 2d 209, 216 (1984), this court held that under both the fede ral and I llinois constitutions, it is “re asonable ” for police t o conduct a full sear ch of a person afte r any lawful arr est. Rather than illust rate a l o n gstanding tradition that custodial arr ests and sear ches are u n reasonable afte r an arr est for a petty or traff

ic offe nse, our case law, post- W atkins
, reve als just the opposite. I f an y thing, Atwater is consistent with the searc h and seizure c ase la w in I llinois that predates it. ¶ 20 In support of his argument conce rning I llinois ’ long- sta n d i n g h i s t o ry an d traditions, defe ndant also relies on section 107-12 of th e C o de of Criminal Procedur e of 1963 (725 I L CS 5/ 107-12 (West 2010)), which provides a s follows:

“§ 107-12. Notice to appea r. (a) Whenever a peac e office r is authorized to arr est a per son without a warr ant he may instead issue to such per son a notice to a ppear

. (b) The notice shall: (1) B e in writing ; (2) State the na

me of the pe rson and his addr ess, if known; (3) Set for

th the nature of the off

ense; (4) B e signed by

the offic er issuingthe notice; and (5) Reque st the person to appe ar be fore a cour t at a ce rtain time and plac e. (c) Upon failure of the person to appea r a summo n s o r warrant of arr est may

-5-issue. (d) In any case in which a person is arr ested for a Class C misdemeanor or a petty offe nse and rema

nded to the sher iff other

than pursuant to a c ourt order
, the sheriff may issue such per son a notice to a ppear .” Def endant n o t es that this statute has been fre quently interpre ted as providing for the appea ranc e in court of an arr estee without the nece ssity and inconvenienc e of an immediate

arr est. See, e.g. , People v. W arren , 173 I ll. 2d 3 48, 357 (1996); People v. Brausam , 83 I ll. App. 2d 354, 358-59 (1967) . The statute, howe ver, only allows the police to issue a notice t o ap p ea r in lieu of an arr est. I t does not require it. In fac t, the statute even rec og ni z es i n 1 subsection (d) that a per son may be ar rested f or a pe tty offe nse. ¶ 21 The State notes that other statutes show that defe ndant’s contentions reg ardingI llinois ’ long- standing history and traditions fall wide of the mark. For instance, section 107-2(1) (c) of the Code of Criminal Procedur e of 1963 provides that a peac e office r may arr est a person when he or she has “r ea sonable g rounds to believe that the person is committing or has committed an offe nse.” 725 I L CS 5/107-2(1) (c ) (West 2010). And section 102-15 of the same code ex plains that “ ‘[ o]f fe n s e’ m eans a violation of any penal statute of t his State.” 725 I L CS 5/102-15 (West 2010); see also People v. Edge
, 406 I ll. 490, 497 (1950) (construing prede cessor statute to section 1 0 7

- 2 ( 1 ) ( c ) a s e n c o mp a s s in g “ a ll f e lonies, howeve r g reat, and all misdemea

nors, howeve r sl ight” ). Moreover, section 16-102(a ) of the I llinois Vehicle Code provides that the State P o l i ce “shall patrol the public highw ay s and make

arr ests for violation of the provisions of this Act.” 625 I L CS 5/16-102(a) (West 2010). Thus, just as I llinois has no common law tradition of prohibiting arr ests for minor offe nses, there is no such statutory tradition either. In fac t, any statutory tradition that I llinois has is to allow such ar rests. Clear ly , no grounds existto depar t from lockstep on this issue. ¶ 22 Def

endant criticizes Atwater ’s rea soning and contends that such rea soning has no place in I llinois sear ch and seizure law. Def endant ag ain contends, without citation, that adopting Atwater ’s rea soning would “ a lt e r lo n g s ta nding I llinois jurisprudenc e reg arding unrea sonable

sear ches and seizures.” But, as we h av e already set forth above, defe ndant has failed to id e nti f y a ny th in g in I ll in o is jurisprudenc e that is contra dicted by Atwater ’s rea soning. Indeed,

as we set forth above, Atwater is consi s t en t wi th both I llinois statutory and common law. Def endant i n s i s t s that Atwater “conf licts with long- standing state tradition and values as ref lected by long- standing I llinois case prec edent,” but he has failed to identify any such prec edent a

nd our re sear ch has disclose d none. ¶ 23 Def

endant also argues that sever al other states have relied on their state constitutions i n declining to follow Atwater

. Ag ain, this is not r eleva nt f or purposes of the limit ed lockstep analy sis. As noted i n Caballes
, our st ate constitut ional jurisprudenc e cannot be pre dicated on the ac tions of our sister states. Caballes , 221 I ll. 2d at 313; se e also People v . Clemons
,

Even if the st atute did re qui re a not ic e to app ear in li eu of an arre st , tha t woul d not cha nge 1 the fou rt h amendm ent ana lysis

. T he Supr eme Cour t hel d in Vir gin ia v. Mo ore , 553 U.S. 164 (20 08)
, tha t t he p oli ce do n ot viola te th e f our th amendm ent when th ey m ake an arre stth atis sup por te d by pro bab le ca use but is pr ohi bit ed b y stat e l aw.

-6-2012 I L 107821, ¶ 32 (“This court’s jurisprudenc e of I llinois constitutional law cannot be

predic ated on the actions of our sister s t at es

. ”)

. Instead, we look only to the intent of the draf ters, the deleg ates, and the voters in adopting the I llinois Constitution of 1970. Caballes
, 221 I ll. 2d at 313. This court chose the limit ed lockstep approa ch beca use it believed that this approa ch best ref

lected “our understanding of the intent of the fra m er s o f the I llinois Constitution of 1970.” Id. W h at an o t her state deter mines about i ts own consti tution is not rele vant to this question. ¶ 24 In light of the above, we are not pe rsuade d by defe ndant’s ar gument that long- standing state history and traditions conflict with the analy sis in Atwater

. For this re ason, we will construe article I
, section 6, of t he I llinois Constitution of 1970 in the s am e m an ner as the fourth amendment. The circu i t co urt there fore corr ectly denied defe ndant’s motion to suppress.

¶ 25 Public Defe nder F ee ¶ 26 Def

endant next argues that the appellate court err ed in rema nding the cause for a hea

ring

on his ability to pay

a public def

ender fee

. Def endant contends that, beca use m ore than 90 day s had passe d since fina l judgment, it was too late to hold such a hear ing. See725 I L CS 5/113-3.1(a) (West 2010). We hold that defe ndant has forf eited this issue by failing to raise it in his petition for leave to appea l. I ssues that a pa rty fails to r aise in its petition for leave to appea l, even if raised in the party ’s appellant’ s brief, are not proper ly befor e this court and

are forf eited. People v. McD onough
, 239 I ll. 2 d 2 6 0 , 276 (2010); People v. W hitfield
, 228 I ll. 2d 502, 509 (2007). The only excuse that defe ndant offe rs for failing to raise the issue in his petition for leave to appea l is that, at the time t h e p et ition was prepa red, the issue was alre ady pending befor e this court in People v. Gutierrez , 2012 I L 111590. We fail to see what differ ence this make s. I f defe ndant wanted to obta in r elief on the issue, he still would have had to raise the issue himself, even if the issue was alre ady pending befor e the court in another case . We see no re ason to excuse def endant’ s forfe iture.

¶ 27 CONCLUSI ON ¶ 28 In Atwater , the Supreme Court held that an arrest for a minor, fine-only offe nse is not

unrea sonable under the fourth amendment. Under our limit ed lockstep doctrine, we construe the sear ch and seizure clause of our state constitution the same way , unless any of the narr ow exceptions to lockstep i nterpre tation apply . Def endant ha s failed to demonstrate that those exceptions are prese nt here
, and thus we hold the trial court did not err in denying his motion to suppress. ¶ 29 The a

ppellate c ourt’s judg ment is affirme d.

¶ 30 Affir

med.

-7-