2024 IL App (1st) 232336

No. 1-23-2336B 

Opinion filed February 8, 2024 

Third Division

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

HERBERT PITTS, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 23 MC 1114500 

Honorable 

William Fahy, 

Judge, presiding. 

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. 

Presiding Justice Reyes concurred in the judgment and opinion. 

Justice R. Van Tine specially concurred, with opinion. 

OPINION

¶ 1 Defendant Herbert Pitts appeals the trial court’s order denying him pretrial release, 

pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-

6.1 (West 2022)). 

¶ 2 Defendant argues only that the State failed to prove the first element required for his 

detention: that the proof was evident or the presumption great that defendant committed a 

detainable offense. For the reasons that follow, we affirm the judgment of the trial court. 
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¶ 3 I. BACKGROUND

¶ 4 On November 27, 2023, the State charged defendant with multiple offenses, including one 

count of armed violence based on the possession of crack cocaine, one count of unlawful use of a 

weapon by a felon, two counts of possession of a controlled substance, one count of possession of 

cannabis with intent to manufacture or deliver, and two counts of aggravated assault. The same 

day, the State filed a petition for pretrial detention based on the armed violence count, and the trial 

court held a hearing on that petition. 

¶ 5 The State made a factual proffer, which is summarized as follows. On November 27, 2023, 

at 9 a.m., Chicago police officers were dispatched to 11632 South Church Street in Chicago, 

Illinois, for a property dispute between a landlord 1 and an alleged squatter. The landlord told 

responding officers that defendant was squatting on his property and needed to leave. The officers 

informed the landlord and defendant that it was a civil dispute for the county, but that defendant 

should vacate the premises. The officers departed but were called to return to the same location 

several minutes later with the landlord claiming that defendant had threatened him with a gun.

¶ 6 The landlord then told the officers that defendant left, traveling northbound on Church 

Street, carrying a large black garbage bag. The officers located defendant, who was not carrying a 

black garbage bag, and placed him under arrest. A street camera showed defendant walking 

northbound, carrying a black garbage bag, only to enter a yard at 11620 South Church Street, and 

then exit without the bag. Officers traveled to 11620 South Church Street and recovered a black 

garbage bag. The bag contained mail bearing defendant’s name, prescription medication in 

defendant’s name, a loaded nine-millimeter handgun, Xanax pills, THC gummies, 10 cannabis 

1Police reports in the record list two separate victims, and the State’s proffer does not make it clear 

which one of those is the landlord to which its proffer refers.
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cigarettes, and a jar and two sandwich bags containing cannabis. Defendant did not possess a valid 

Firearm Owner’s Identification (FOID) card or a Concealed Carry License (CCL). A search of 

defendant’s person yielded a bag containing 21 grams of crack cocaine. The State also referenced 

the fact that the residence in which defendant had been squatting was missing multiple construction 

tools valued at over $10,000, and accused defendant of being responsible, though it did not charge 

defendant with any offenses related to those tools and presented no evidence that defendant was 

responsible. 

¶ 7 Defendant’s criminal history contains numerous felony convictions, including domestic 

abuse, aggravated battery with a deadly weapon, aggravated battery in a public place, felon in 

possession of a firearm, a felony violation of an order of protection, and two separate convictions 

for aggravated unlawful use of a weapon. He also has six misdemeanor convictions, including two 

violations of an order of protection, assault, disorderly conduct, animal cruelty, and unlawful use 

of a weapon. Pretrial services scored defendant a 4 on “new criminal activity” scale and a 3 on the 

“failure to appear” scale.

¶ 8 Defense counsel proffered that the initial 911 call was made by defendant to report a 

burglary, that the landlord subsequently called 911 to report a trespass to property, and that nothing 

established definitively whether defendant had a right to be on the property or not. She also 

proffered that defendant was 50 years old, a life-long resident of Cook County, had five children, 

was a graduate of George Washington Career Academy, and was presently taking classes at Olive 

Harvey Community College. 

¶ 9 The trial court found that the State met its burden of proof and granted the State’s petition 

for detention. Defendant timely appealed the detention order. Ill. S. Ct. R. 604(h)(2) (eff. Oct. 19, 

2023). 
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¶ 10 II. ANALYSIS

¶ 11 A. Standard of Review

¶ 12 At the outset, we must address the question of the proper standard of review to be applied 

when reviewing a trial court’s order denying pretrial release. Since the effective date of the revised 

version of the Code, a debate has already arisen among the appellate districts, and even among 

divisions in the First District, regarding the appropriate standard of review to apply to whether the 

State met its burden found at subsection 110-6.1(e) of the Code. 725 ILCS 5/110-6.1(e) (West 

2022); see People v. Herrera, 2023 IL App (1st) 231801, ¶¶ 22-24 (observing split between 

districts).

¶ 13 The Code establishes that all defendants are presumed eligible for pretrial release. 725 

ILCS 5/110-6.1(e) (West 2022). That presumption is only overcome if the State can prove by clear 

and convincing evidence that (1) the proof is evident or the presumption great that the defendant 

has committed a detainable offense, (2) the defendant poses a real and present threat to the safety 

of any person or the community based on the specific, articulable facts of the case, and (3) no 

condition or combination of conditions set forth in section 110-10 of the Code can mitigate that 

threat. Id. § 110-6.1(e)(1)-(3). 

¶ 14 Some courts have held that the abuse of discretion standard should apply to the trial court’s 

factual findings. People v. Inman, 2023 IL App (4th) 230864, ¶ 10; People v. Whitmore, 2023 IL 

App (1st) 231807, ¶ 18; People v. Bradford, 2023 IL App (1st) 231785, ¶ 33. In other instances, 

courts have held that the trial court’s finding should only be reversed if it is against the manifest 

weight of the evidence. People v. Stock, 2023 IL App (1st) 231753, ¶ 12; People v. Rodriguez, 

2023 IL App (3d) 230450, ¶ 8. One division of the First District recently held that the first two 
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elements should be reviewed using the manifest weight standard while the third should be 

reviewed for an abuse of discretion. People v. Saucedo, 2024 IL App (1st) 232020, ¶¶ 35-36. That 

decision also spawned a special concurrence advocating that our standard of review should be 

de novo. Id. ¶¶ 64-123 (Ellis, J., specially concurring). 

¶ 15 We think the most appropriate standard by which to review this sufficiency question is 

whether the trial court’s findings were against the manifest weight of the evidence. While the result 

of this case would be the same under any standard, we believe it pertinent to address this conflict 

to attempt to achieve some resolution, or at least further the discourse of this issue going forward. 

¶ 16 The line of cases holding that the appropriate standard of review is whether the trial court 

abused its discretion appears to begin with Inman, and so that is a logical place to begin the 

analysis. Inman’s entire basis for applying the abuse of discretion standard was that that is the way 

we have always reviewed bail appeals. Inman, 2023 IL App (4th) 230864, ¶ 10 (citing People v.

Simmons, 2019 IL App (1st) 191253, ¶ 9).

¶ 17 However, even though the defendant in Simmons was appealing the denial of bail, Simmons

reviewed the issue using the portion of the Code in effect at the time that governed the setting of 

bail and other conditions of release. Simmons, 2019 IL App (1st) 191253, ¶¶ 1, 12; 725 ILCS 

5/110-5 (West 2018). In other words, Simmons did not interpret the prior version of the statute that 

is now at issue in this case. On that basis, Simmons should hold no sway over the appropriate 

standard of review to be applied to a detention order. 

¶ 18 In fact, there is virtually no precedent dealing with the prior version of the detention statute. 

It appears there is one published decision, People v. Gil, 2019 IL App (1st) 192419, which 

addressed the prior version of the detention statute. But Gil was concerned with whether the proper 
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procedures were followed before the trial court denied bail and had no occasion to contemplate the 

standard of review for the issue facing us today. Id. ¶ 15. 

¶ 19 The prior version of section 110-5 of the Code had no burden of proof regarding the setting 

of bail or conditions of release. 725 ILCS 5/110-5 (West 2018). And the two cases upon which 

Simmons relied both also concerned the setting of bail rather than detention. See People v. 

Saunders, 122 Ill. App. 3d 922, 929 (1984) (court’s decision to increase bond from $200,000 back 

to the original $500,000 had “no hint of the arbitrariness or caprice which signals judicial abuse of 

discretion”); see also People v. Edwards, 105 Ill. App. 3d 822, 830 (1982) (court’s decision to 

require the defendant to post bond on appeal was not an abuse of discretion). Thus, it made sense 

for Simmons to apply an abuse-of-discretion standard. Simmons, 2019 IL App (1st) 191253, ¶¶ 9, 

12-13. 

¶ 20 Therefore, when Inman claimed that we have historically reviewed bail appeals using an 

abuse of discretion standard, this does not appear to be the case when it comes to detention orders. 

Inman, 2023 IL App (4th) 230864, ¶ 10. Even ignoring the lack of historical precedent for 

reviewing detention orders for an abuse of discretion, it makes little sense to afford the trial court 

discretion over what is a binary principle; either the State met its burden of proof, or it has not. 

¶ 21 The legislature has mandated that the State’s burden at a detention hearing is clear and 

convincing evidence. 725 ILCS 5/110-6.1(e) (West 2022). We have consistently attached a 

manifest weight of the evidence standard of review to findings made by the trial court under that 

burden of proof. For example, in parental rights cases, parental unfitness must be shown by clear 

and convincing evidence; thus, the standard of review is whether the trial court’s finding was 

against the manifest weight of the evidence. In re C.N., 196 Ill. 2d 181, 208 (2001). 
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¶ 22 Likewise, in Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 

2022)) proceedings, the trial court’s determination that the State proved by clear and convincing 

evidence that the safety of others required the revocation of conditional release will not be 

disturbed unless it is against the manifest weight of the evidence. In re Commitment of Rendon, 

2014 IL App (1st) 123090, ¶ 32. 

¶ 23 Additionally, in civil cases, a verdict is only reversed if it was contrary to the manifest 

weight of the evidence. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). 

And in criminal cases, for example, factual findings on a motion to suppress evidence or a motion 

to suppress statements are not overturned unless they are against the manifest weight of the 

evidence. People v. Brown, 182 Ill. App. 3d 1046, 1051 (1989); People v. Partin, 2022 IL App 

(2d) 210455, ¶ 35. 

¶ 24 If we reviewed whether the State met its burden of proof here based on whether the trial 

court abused its discretion, then appeals stemming from detention orders would be at odds with 

the bulk of our “clear and convincing” jurisprudence. Additionally, an abuse of discretion standard 

of review makes little sense when we consider the point of standards of proof. 

¶ 25 Standards of proof are concerned with the quantum and quality of proof that must be 

presented in order to prevail on an issue. In re D.T., 212 Ill. 2d 347, 355 (2004). The standard of 

proof instructs “ ‘ “the factfinder concerning the degree of confidence our society thinks he should 

have in the correctness of factual conclusions for a particular type of adjudication.” ’ ” Id. (quoting

Addington v. Texas, 441 U.S. 418, 423 (1979), quoting In re Winship, 397 U.S. 358, 370 (1970) 

(Harlan, J., concurring)). The sound discretion of the trial court “is simply not a standard of proof—

traditional, nontraditional, or otherwise,” and says nothing about the degree of confidence a trial 
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court must have in the correctness of its conclusions. Id. This logic holds even when the trial court 

is required to consider or balance numerous statutory factors. Id. 

¶ 26 If we were to apply an abuse of discretion standard, that would logically necessitate that 

the detention determination is one left to the trial court’s discretion. But that is plainly inconsistent 

with the Code’s language. If the State fails to carry its burden at a pretrial detention hearing, the 

Code does not empower the trial court to use its discretion to nevertheless detain the individual. 

725 ILCS 5/110-6.1(e) (West 2022). In that instance, the Code’s presumption of eligibility for 

release remains intact, and the defendant must be released, with or without conditions. Id.

¶ 27 An abuse of discretion standard is also inconsistent with the significance of pretrial 

detention orders. Pretrial detention constitutes a deprivation of the fundamental right to liberty. 

United States v. Salerno, 481 U.S. 739, 750 (1987). Indeed, the presumption of eligibility for 

release and the elimination of cash bail seems to bring us closer than ever before to Salerno’s 

observation that “[i]n our society liberty is the norm, and detention prior to trial or without trial is 

the carefully limited exception.” Id. at 755. Pretrial liberty “permits the unhampered preparation 

of a defense, and serves to prevent the infliction of punishment prior to conviction.” Stack v. Boyle, 

342 U.S. 1, 4 (1951). Furthermore, pretrial detention wreaks havoc on familial relationships, 

employment, and educational pursuits while the individual is still cloaked in the presumption of 

innocence.

¶ 28 All of this is to say that abuse of discretion—the “most deferential standard of review—

next to no review at all,” a standard typically reserved for decisions by a trial judge overseeing his 

or her courtroom or in maintaining the progress of a trial (internal quotation marks omitted)
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(People v. Holman, 402 Ill. App. 3d 645, 650 (2010))—is not appropriate for such a critical 

decision with far-reaching consequences. 

¶ 29 Accordingly, we believe the appropriate standard of review for whether the State provided 

clear and convincing evidence as to the three elements necessary to justify pretrial detention is 

whether the trial court’s finding was against the manifest weight of the evidence. Clear and 

convincing evidence is “that quantum of proof that leaves no reasonable doubt in the mind of the 

fact finder about the truth of the proposition in question.” (Internal quotation marks omitted.)In re 

Tiffany W., 2012 IL App (1st) 102492-B, ¶ 12. “A finding is against the manifest weight of the 

evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, 

arbitrary, or not based on the evidence presented.” People v. Deleon, 227 Ill. 2d 322, 332 (2008). 

¶ 30 B. Sufficiency of the Evidence 

¶ 31 Defendant makes one argument on appeal: that the State failed to prove by clear and 

convincing evidence that the proof was evident or the presumption great that he committed a 

detainable offense. The State sought pretrial detention based only on the armed violence count. 

While defendant does not contest the portions of the State’s proffer that claimed he was armed 

with a firearm, he argues that nothing in the State’s proffer established that defendant committed 

the requisite additional felony while armed with a firearm necessary for armed violence. We 

disagree. 

¶ 32 A person commits armed violence when, while armed with a dangerous weapon, he 

commits any felony other than a number of enumerated exceptions. 720 ILCS 5/33A-2(a) (West 

2022). Offenses that cannot serve as the requisite felony are, for example, first degree murder, 

aggravated battery of a child, home invasion, and “any offense that makes the possession or use of 
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a dangerous weapon either an element of the base offense, an aggravated or enhanced version of 

the offense, or a mandatory sentencing factor that increases the sentencing range.” Id. Possession 

of a controlled substance is not one of the excluded felony offenses. Id. Armed violence is a 

detainable offense. 725 ILCS 5/110-6.1(a) (West 2022). 

¶ 33 The State’s proffer established that defendant threatened the landlord with a firearm and 

then left the property, carrying a black garbage bag. Camera footage showed defendant enter a 

yard with a bag, and then leave without it. Officers subsequently went to that yard and located the

black garbage bag. The search of the bag yielded a handgun, Xanax pills, and cannabis. A search 

of defendant’s person yielded crack cocaine.

¶ 34 In order for the handgun to make it into the black garbage bag that was recovered from the 

yard, defendant must have had it on his person when he left the property at which he had threatened 

the landlord. Given that defendant walked from the altercation to where he deposited the bag and 

crack cocaine was found on his person, there was at least circumstantial evidence that defendant 

possessed the illegal drugs simultaneously with the handgun at some point prior to discarding the 

bag. The alternative and unconvincing, albeit possible, theory—seemingly endorsed by 

defendant—is that he retrieved the crack cocaine at the location where he discarded the bag and 

put it in his pockets and, therefore, never simultaneously possessed the handgun and the narcotics. 

¶ 35 Importantly, the State’s burden at this stage is not proof beyond a reasonable doubt, but 

rather only whether there was clear and convincing evidence that “proof [was] evident or the 

presumption great.” Id. § 110-6.1(e). We do not believe that the trial court’s finding was 

unreasonable, arbitrary, or not based on the evidence presented, or that the opposite conclusion 

was clearly evident.
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¶ 36 III. CONCLUSION

¶ 37 For the reasons set forth above, the judgment of the circuit court of Cook County is 

affirmed.

¶ 38 Affirmed.

¶ 39 VAN TINE, J., specially concurring: 

¶ 40 I concur in the outcome of this appeal. However, I would review the trial court’s ruling 

under the abuse of discretion standard rather than the manifest weight of the evidence standard.

¶ 41 Most pretrial detention hearings do not involve evidence.2 Evidence consists of witness 

testimony, documents, physical exhibits, stipulations, and judicially noticed facts. Illinois Pattern 

Jury Instructions, Criminal, No. 1.01 (approved July 18, 2014). At most pretrial detention hearings, 

the parties do not present such evidence. Instead, the parties make proffers and representations to 

the court (725 ILCS 5/110-6.1(f)(2) (West 2022)), which the court generally accepts as true 

without adversarial testing such as cross-examination. Moreover, the Pretrial Fairness Act states 

that the Rules of Evidence do not apply at pretrial detention hearings (id. § 110-6.1(f)(5)), 

suggesting that the legislature does not view pretrial detention hearings as involving evidence. 

Because the parties generally do not introduce evidence at pretrial detention hearings, the appellate 

records that those hearings produce are sparse. On review, there is usually no evidence for us to 

weigh. 

¶ 42 Furthermore, the trial court is in a better position than we are to evaluate whether a 

defendant should be detained pending trial. Unlike us, the trial court can observe the defendant’s 

2I say “most” because some pretrial detention hearings involve video recordings from sources such 

as police body cameras and surveillance cameras. Such video recordings could potentially be admissible 

evidence, although they are generally not formally introduced as evidence at pretrial detention hearings.
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demeanor and whether he or she appears compliant versus defiant or threatening. In other areas of 

the law, when we recognize that the trial court is in a better position to evaluate an issue based on 

the court’s personal observation of and familiarity with the case, the abuse of discretion standard 

applies. See, e.g., People v. Bowman, 2012 IL App (1st) 102010, ¶ 72 (sentencing); Oldenstedt v. 

Marshall Erdman and Associates, Inc., 381 Ill. App. 3d 1, 11 (2008) (effect of improper closing 

argument). Like pretrial detention rulings, sentencing decisions affect the liberty of criminal 

defendants and are often based on submissions from the parties that would not be admissible as 

evidence, such as presentence investigation reports and letters from victims, families, and friends. 

We trust our trial court judges to exercise discretion in sentencing decisions and we should do the 

same for pretrial detention decisions.

¶ 43 I acknowledge that the Act imposes a burden of clear and convincing evidence on the State. 

725 ILCS 5/110-6.1(e) (West 2022). Although determining whether the State met that burden or 

not is binary, the trial court is not confined to a binary ruling of detention or release. For example, 

the court can order pretrial release with conditions such as electronic monitoring and can modify 

those conditions as the case progresses. Id. § 110-5(a), (f-5), (g). Moreover, the existence of a clear 

and convincing evidence burden in the trial court does not automatically require manifest weight 

of the evidence review on appeal. In other areas of the law, we review the trial court’s ultimate 

ruling for an abuse of discretion even though one of the parties had to prove a certain proposition 

by clear and convincing evidence. See, e.g., Roberson v. Belleville Anesthesia Associates, Ltd., 

213 Ill. App. 3d 47, 52 (1991) (party challenging validity of settlement agreement must prove by 

clear and convincing evidence that settlement was not in good faith, but trial court’s ruling on that 

issue is reviewed for abuse of discretion); In re Marriage of Ryman, 172 Ill. App. 3d 599, 607 
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(1988) (contributions to marital property in divorce must be proved by clear and convincing 

evidence, but trial court’s attempt to offset marital estate’s right to reimbursement for those 

contributions is reviewed for abuse of discretion). Therefore, in my view, abuse of discretion 

review is more appropriate for pretrial detention rulings.

¶ 44 However, the result of this case would be the same under either standard, which is why I 

concur with the outcome. 
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People v. Pitts, 2024 IL App (1st) 232336

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-MC1114500; the Hon. William Fahy, Judge, presiding. 

Attorneys

for

Appellant:

Sharone R. Mitchell Jr., Public Defender, of Chicago (Tai Martin, 

Assistant Public Defender, of counsel), for appellant.

Attorneys

for

Appellee:

Kimberly M. Foxx, State’s Attorney, of Chicago (Jeffrey M. 

Houzenga, Assistant State’s Attorney, of counsel), for the People.