NOTE: This article contains additional content to reflect changes to Illinois law after passage of Public Act 101-565. After an effective date of January 1, 2020, there have been numerous changes to the Illinois Human Rights Act and related provisions, including the use of arrest records in the employment context.
With the help of local media, the public is learning more about a dubious practice by the Chicago Police Department (CPD) of making warrantless arrests based on questionable information.
The Chicago Tribune reported the story of Frank Craig, an Army veteran who sued the City of Chicago for his arrest in 2006. Police officers arrested him inside his residence without a warrant. But the CPD justified the arrest on the basis of an ‘investigative alert.’
Craig filed a civil rights lawsuit and reached a settlement of $570,000 with the City of Chicago in 2011. Furthermore, the Illinois Human Rights Act prevents organizations from using Craig’s arrest record against him in matters of future employment.
The use of investigative alerts is legally questionable at best – and a flagrant violation of the constitution at worst. Any person arrested pursuant to an investigative alert may have a cause of action against the City of Chicago and the arresting officers for violation of their civil rights under 42 USC 1983.
What is an Investigative Alert?
An investigative alert is an intra-department notice that police officers rely on to take someone into custody. It is not an arrest warrant. Rather, it is an administrative order to arrest a person based on information that they were involved in a crime at some point in time.
An arrest warrant is obtained through a judge. In order to get one, a police officer must submit an application along with a sworn statement, and a judge reviews it for probable cause. If the judge finds probable cause, an arrest warrant is issued.
But an investigative alert completely bypasses the legal procedure for obtaining an arrest warrant. There is no application, no sworn statement, and no judge looking for facts that constitute probable cause. Instead, the police issue the alert and any officer who finds the suspect is ordered to take them into custody.
The CPD is estimated to have more than 2,000 investigative alerts outstanding that direct its officers to arrest a person. Under special order, the Chicago police have two forms of investigative alerts:
- Investigative Alert / Probable Cause to Arrest
- Investigative Alert / No Probable Cause to Arrest
See CPD Special Order S04-16.
The names themselves are misleading, because no judge has made a legal finding of probable cause. Instead, it was the police who made that determination independently. Issued March 6, 2001, this order changed the name from ‘stop order’ to investigative alert, most likely to deflect the accusation that it is an order to arrest. Download CPD Special Order S04-16.
The investigative alert commands the officer to do the following:
Officers who run name checks on individuals who have an Investigative Alert / Probable Cause to Arrest on file will:
a. take the subject into custody if not already in custody.
b. process the arrestee in accordance with the procedures outlined in the Department directive entitled “Processing Persons Under Department Control.” Indicate on the Arrest Report (CPD-11.420) that the arrestee is the subject of an Investigative Alert / Probable Cause to Arrest.
See CPD Special Order S04-16.
Investigative Alerts & the 4th Amendment
As it stands, the investigative alert is a violation of the Illinois state constitution (Article I, Section 6) and the U.S. federal constitution (4th Amendment), which both require a warrant based on probable cause to make an arrest. Although exigent circumstances sometimes allow the police to make an arrest without a warrant, investigative alerts do not fall within recognized exceptions.
Investigative alerts concern alleged crimes that took place months and years earlier. They lie dormant in the CPD database until that person or someone matching their description comes across a CPD officer.
The Illinois Code of Criminal Procedure does not allow the police to make an arrest made pursuant to an investigative alert either:
Sec. 107-2. Arrest by Peace Officer.
(1) A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be arrested; or
(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction; or
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.
See 725 ILCS 5/107-2.
Prosecutors have argued that investigative alerts give the police officer ‘reasonable grounds to believe that the person has committed an offense.’ But the alerts do not provide probable cause or even reasonable grounds to suspect probable cause.
The information is old and vague. If the arresting officer were to make an application for a warrant based on the information in an investigative alert, the judge would likely deny it. These alerts are so often criticized that the Federal Bureau of Investigation does not even include them in its nationwide fugitive database.
The victim of an investigative alert should consult with counsel about an action for false arrest or false imprisonment. Such an arrest is a violation of constitutional rights under various U.S. federal and Illinois state laws.
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