People v. Tomberg , 2022 IL App (2d) 200591-U ( 2022 )

2022 IL App (2d) 200591-UNo. 2-20-0591
Order filed March 28, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 04-CF-1265
)
GREGORY TOMBERG, ) Honorable
) Jeffrey S. MacKay,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶1 Held: The trial court properly denied defendant’s motion for return of his property
following his prosecution for predatory criminal sexual assault of a child. Retention
of the property was plainly authorized by statute given the nature of the prosecuted
offense and the type of property at issue. Defendant cites no pertinent legal
authority to support his request for return of lawfully seized property that might be
relevant to future litigation.
¶2 In 2004, Itasca police executed a search warrant for the residence and vehicle of defendant,
Gregory Tomberg. In 2008, after a jury trial, defendant was convicted of eight counts of predatory
criminal sexual assault of a child (720 ILCS 5/12-14.1(a) (West 1996)) and four counts of
aggravated criminal sexual assault (id. § 12-14(b)). The court sentenced him to a total of 100 years
2022 IL App (2d) 200591-Uin prison. On appeal, we confirmed his convictions and sentences. People v. Tomberg, No. 2-08-
0182 (unpublished order under Illinois Supreme Court Rule 23). In 2011, defendant filed a petition
for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). The
trial court summarily dismissed the petition and we affirmed. People v. Tomberg, 2012 IL App
(2d) 110985-U.
¶3 In 2020, defendant filed a pro se petition for the return of property that the police had
seized. The State objected to the return of most of the items. After a hearing, the trial court denied
defendant’s request for the return of the disputed items and denied his motion to reconsider.
Defendant appeals pro se. We affirm.
¶4 I. BACKGROUND
¶5 Defendant’s petition alleged as follows. On May 11, 2004, Itasca police officers arrested
him, searched his residence and vehicle, and seized numerous items. In 2019, defendant mailed
requests to the police department and the Du Page County State’s Attorney’s office for the return
of numerous specified items. He received no response. Defendant’s 2020 petition for return of
his property listed 24 categories of personal property that he wanted to be returned to his sister,
Pamela Gretza. The petition did not provide any statutory basis or other legal authority for
ordering the return of the items.
¶6 The State did not file a response. On June 25, 2020, the trial court held a hearing where
the assistant State’s attorney appeared, arguing that the State should retain the evidence. Fisher
told the court that defendant might file a successive postconviction petition, or the State might
petition to have him adjudged a sexually violent person. Moreover, among the items seized were
photographs of a minor whom defendant had admitted molesting; there had been no prosecution
to date, but one was possible.
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2022 IL App (2d) 200591-U¶7 The trial court stated that it would order the release of the uncontested items. The court
then noted that it had gone through the police department’s inventory of the seized items. All
items were seized lawfully; no court had held otherwise. Of the contested items: (1) some were
contraband, 2) defendant had used some to commit sexual offenses, (3) some could not be lawfully
possessed by a convicted sex offender, and (4) other items could have evidentiary value in future
proceedings, such as a collateral attack on the judgment.
¶8 The court entered a written order requiring the return of the uncontested items to Gretza.
For reasons stated at the hearing, it denied defendant’s petition as to the remaining items and
ordered the Itasca Police Department to preserve them.
¶9 Defendant moved to reconsider the judgment, contending that none of the items he wanted
to be returned were contraband or were proven to have been involved in any illegality. Defendant
disclaimed any wish to possess any of the items in prison but contended that family members
should have the items returned to them.
¶ 10 On September 25, 2020, the court held a hearing where the assistant State’s attorney
appeared for the State. He reiterated his arguments from the previous hearing. He argued further
that, under section 116-4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-(4)
(West 2020)), in a sexual-offense case such as this one, the police are required to retain any seized
evidence that might contain forensic evidence until the completion of the defendant’s sentence.
He asserted that even items that were not contraband had potential evidentiary value. Moreover,
some items were recovered from a garbage container, so defendant had no possessory interest in
them.
¶ 11 The court denied defendant’s motion to reconsider. It reiterated its reasoning from the
initial hearing and added that section 116-4 of the Code defeated the petition. Defendant appealed.
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2022 IL App (2d) 200591-U¶ 12 II. ANALYSIS
¶ 13 In his pro se appeal, defendant contends that he is entitled to the return (to his sister) of the
contested articles of personal property that the police had seized. Essentially, defendant reiterates
the arguments that he made in his petition and his motion to reconsider the judgment. Defendant
cites a single legal authority, People v. McCavitt, 2019 IL App (3d) 170830, rev’d 2021 IL 125530,
to support his claim of error.
¶ 14 Defendant also contends that section 116-4 does not apply retroactively here because it was
enacted after he was arrested and his home and vehicle were searched. However, defendant cites
no basis for claiming that section 116-4 was enacted after the searches and seizures here (a false
notion anyway (see Pub. Act 91-871, § 10 (eff. Jan. 1, 2001) (adding 725 ILCS 5/116-4))) or that,
if this were so, the statute could not apply retroactively. According to Illinois Supreme Court Rule
341(h)(7) (eff. Nov. 1, 2017), arguments not raised on appeal are forfeited. An appellant may not
preserve a contention by asserting it baldly. A reviewing court is entitled to have the issues clearly
defined with pertinent authority cited and is not a depository into which the appealing party may
dump the burden of argument and research. People v. Hood, 210 Ill. App. 3d 743, 746 (1993).
Indeed, insufficiently developed arguments are forfeited. See Holmstrom v. Kunis, 221 Ill. App.
3d 317, 325 (1991). The retroactivity issue is potentially complex, and we shall not plunge into it
on our own.
¶ 15 Turning to the merits, respondent’s appeal fails in two respects. First, partly because of his
forfeiture, he does not refute the trial court’s conclusion that section 116-4 defeated his petition.
Second, even aside from section 116-4, he does not provide any valid authority as a basis for his
petition.
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2022 IL App (2d) 200591-U¶ 16 Because defendant presents us with issues of law, our review is de novo. See People v.
Henderson, 343 Ill. App. 3d 1108, 1115 (2003).
¶ 17 As pertinent here, section 116-4 reads:
“(a) Before or after trial in a prosecution for a violation of Section *** 12-14 ***
of the Criminal Code of 1961 ***unless otherwise provided herein under subsection (b) or
(c), a law enforcement agency or an agent acting on behalf of the law enforcement agency
shall preserve, subject to a continuous chain of custody, any physical evidence in their
possession or control that is reasonably likely to contain forensic evidence, including, but
not limited to, fingerprints or biological material secured in relation to a trial and with
sufficient documentation to locate that evidence.
(b) After a judgment of conviction is entered, the evidence shall either be
impounded with the Clerk of the Circuit Court, or shall be securely retained by a law
enforcement agency. *** Retention shall be until the completion of the sentence, including
the period of mandatory supervised release for the offense ***.
(c) After a judgment of conviction is entered, the law enforcement agency required
to retain the evidence described in subsection (a) may petition the court with notice ***.”
¶ 18 An unambiguous statute must be applied straightforwardly. People v. LaPointe, 365 Ill.
App. 3d 914, 921 (2006), aff’d, 227 Ill. 2d 39 (2007). Here, we do so. Section 116-4 plainly
requires the retention of the evidence.
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2022 IL App (2d) 200591-U¶ 19 We turn to our second basis for affirmance. As in the trial court, respondent has failed to
provide any valid legal authority requiring the immediate return of evidence seized legally and
might be relevant to possible future litigation.1
¶ 20 Defendant cites no statutory authority at all. His sole case authority is the appellate court’s
opinion in McCavitt, which our supreme court reversed. Thus, defendant’s argument lacks any
valid legal authority and we could deem it forfeited. However, we shall examine McCavitt to show
why it has no application here.
¶ 21 In McCavitt, in 2013, the defendant, a Peoria police officer, was charged with aggravated
criminal sexual assault, based on images the police found via a search of his computer. The search
was under a warrant authorizing a search for digital images or other evidence of aggravated
criminal sexual assault, unlawful restraint, or unauthorized video recording. Detective Jeff Avery
copied the computer’s hard drive (EnCase file) and saved it on his computer. After the defendant
was acquitted of all charges in 2014, he requested the return of his property, including the
computer. The trial court denied the request. McCavitt, 2019 IL App (3d) 170830, ¶¶ 2-5.
¶ 22 In 2014, as part of a department investigation Detective James Feehan obtained a copy of
the EnCase file from Avery, and found apparent child pornography. The defendant moved for the
return of his property. The trial court never ruled on the motion. The defendant was charged with
1
We note that, in particular, respondent does not provide authority requiring that a court
or police department return one person’s property to another who has no possessory interest herself
in the property, especially where the former concedes that he will probably be incarcerated for the
rest of his life and disclaims any interest in physically possessing any item himself. However, as
this issue was not squarely raised by the State or the trial court, we shall not address it further.
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2022 IL App (2d) 200591-Uunauthorized video recording. Feehan obtained a warrant to search the EnCase file and found
more pornography. The defendant was charged with multiple counts of child pornography, based
on images from the EnCase file. Id. ¶¶ 6-8. He moved to suppress the images, arguing that as he
had been acquitted of the 2013 charges, no charges were pending when the 2014 warrant was
obtained. The trial court denied the motion, and, after a jury trial, defendant was found guilty of
numerous charges based on the EnCase file. Id. ¶¶ 8-11.
¶ 23 On appeal, the defendant argued first that the 2014 search violated the fourth amendment.
The State responded primarily that the defendant had no expectation of privacy in the EnCase file,
because it had been lawfully seized. Id. ¶ 13. The appellate court held that, once an item has been
lawfully seized and searched, it may be searched again without a warrant as long as the item
remains in the continuous possession of the police. Id. ¶ 17. However, “the government may not
retain seized property indefinitely.” Id. ¶ 21. Defendant relies upon this passage without further
elaboration or discussion of its context in McCavitt.
¶ 24 The appellate court next observed that the fourth amendment “may be violated when the
State fails to quickly return information contained in a mirrored hard drive that is not within the
scope of the warrant.” (Emphasis added.) Id. ¶ 21. The court then held that Feehan’s 2014 search
“without a warrant” violated defendant’s fourth amendment rights because the police retained data
in the EnCase file that did not fit within the scope of the 2013 warrant. Id. ¶ 25. Therefore, the
police could not legally retain the EnCase file once the trial ended. Id. The court reversed the
defendant’s convictions and remanded the cause (id. ¶¶ 28-32).
¶ 25 The supreme court reversed the appellate court and affirmed the trial court. The court
noted that the defendant had failed to invoke legal authority for the return of his computer or copies
of his hard drive. Id. ¶¶ 80-81. The court further held that Feehan’s 2014 search had not exceeded
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2022 IL App (2d) 200591-Uthe scope of the 2013 warrant, because he was looking broadly for evidence of unauthorized video
recording; the child pornography was properly seized under the plain-view doctrine. McCavitt,
2021 IL 125550, ¶¶ 13-15.
¶ 26 McCavitt is pertinent only to the extent that it undermines defendant’s claim. Like the
defendant in McCavitt, defendant cites no valid legal basis for the return of property seized per a
valid warrant. Moreover, he does not even contend that the seizures exceeded the warrant’s scope,
making his argument, if anything, even weaker than the defendant’s in McCavitt. Therefore, we
must reject his appeal.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
¶ 29 Affirmed.
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