Declaring that to rule otherwise would empower county prosecutors across the state to create their own police forces, a majority of the Illinois Supreme Court has declared the former state’s attorney in downstate LaSalle County overstepped his authority in creating a task force to conduct traffic stops on a stretch of Interstate 80 to interdict and seize drug shipments passing through the county.

On June 29, the state high court ruled 5-2 that neither state law nor common law empower state’s attorneys to create such task forces to patrol public roadways without first receiving either a specific complaint from the public to investigate or a request for help from a local police agency, or without first demonstrating local police were not up to the task of investigating such criminal activity.

Justice Charles E. Freeman authored the opinion. Chief Justice Lloyd A. Karmeier and justices Robert R. Thomas, Anne M. Burke and Mary Jane Theis concurred.

Justices Rita B. Garman and Thomas L. Kilbride dissented, concluding the majority’s opinion was too narrow and improperly restricted the authority of Illinois state’s attorneys to independently investigate criminal activity.

The case landed before the court earlier this year after both a LaSalle County judge and the Illinois Third District Appellate Court in Ottawa declared former LaSalle County State’s Attorney Brian Towne had illegally empowered “special investigators” under a program he called “the State’s Attorney’s Felony Enforcement unit,” or SAFE, to conduct traffic stops on Interstate 80 in the county, a stretch of roadway known to law enforcement as one heavily used by narcotics traffickers moving illegal drug shipments through Illinois.

A group of defendants arrested and charged by Towne’s office for drug trafficking offenses challenged their charges, saying the traffic stops that precipitated the subsequent search of their vehicles by drug-sniffing canine units through other local police agencies were illegal because Towne’s special investigators, former police officers who were no longer sworn peace officers, “lacked the authority to conduct a traffic stop.”  

Towne’s office, however, argued the law empowered prosecutors to appoint special investigators, and the law - neither common law nor specifically in the Counties Code in a clause known as “Section 3-9005(b), from where the state’s attorneys derive their duties -  doesn’t restrict state’s attorneys or their investigators to passively waiting for police to conduct investigations and make arrests before taking action.

“The State contends that section 3-9005(b) authorizes the SAFE unit to conduct traffic stops because ‘State’s Attorneys have a duty to investigate suspected illegal activity,’ ” the justices noted in their decision.

The justices, however, took issue with Towne’s interpretation of that law and his understanding of the role and responsibilities of the state’s attorney under common law, as well.

They noted the state law allowing for the special investigators limit the investigators to three purposes: to serve subpoenas, make return of process and “conduct investigations which assist the State’s Attorney in the performance of his duties.”

And the justices noted in this case, the SAFE unit investigators performed none of those three duties, as they “did not … investigate pending cases,” but rather patrolled, stopped, searched and arrested those against whom no related charges had been pending.

“The State’s proferred construction of section 3-9005(b) would potentially allow the formation of 102 additional police forces statewide, each directed by a State’s Attorney, rendering superfluous the trhee statutory functions of State’s Attorney special investigators,” the majority said.

While the justices agreed state’s attorneys have obligations to investigate and act against criminal activity, the justices found those duties are “premised on a deference to law enforcement agencies.”

Yet, they said, Towne never presented evidence the SAFE unit ever received any request for help from police agencies, nor did he “refer to any inadequacy on the part of any law enforcement agency to investigate suspected illegal activity.”

“Based on Towne’s exhortation to ‘go out and enforce the law,’ the SAFE unit essentially operated as a county police force at the direction of Towne, generating its own cases,” the majority said. “The legislature could not have intended such a far-reaching result.”

Writing in dissent, however, Justice Garman, joined by Kilbride, said the majority had itself overreached in limiting state’s attorneys to conducting investigations solely in partnership with local police.

Requiring prosecutors to first “determine that no other agency has adequately addressed a particular situation” creates an “unworkable” scenario under which no one could know “how inadequacy should be measured, or how a court should review that determination retroactively.”

“Although it may be good policy for the State’s Attorney to cooperate with other agencies on investigations, there is nothing in our common or statutory law prohibiting the State’s Attorney from undertaking independent investigations,” Garman wrote.

“The State’s Attorney has the duty to investigate suspected illegal activity, and until today, that duty had not been limited to circumstances in which a law enforcement agency has failed to adequately address the situation or in which a law enforcement agency requests assistance,” she wrote.

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