LaSalle County state’s attorney: a prosecutor, police chief or both?

Brian Towne likes to describe LaSalle County not by where it is but, more precisely, by where it isn’t.

LaSalle County, where Towne was born 48 years ago and where he’s been state’s attorney since 2006, is an hour south of Rockford, an hour east of the Quad Cities, an hour north of Bloomington and an hour west of Chicago.

To some people, Towne said, that puts the 111,000-person county squarely in the middle of nowhere.

“Of course, I consider it the center of the universe,” said the tall and bespectacled Towne, smiling at his punchline while wearing a black-and-charcoal pinstriped suit with a red tie during an October interview in his office.

Towne himself is at the center of a lawsuit that has ballooned into the fight of his political career.

The lawsuit is over the legality of a highway drug interdiction program he created five years ago. Pending before the Illinois Supreme Court when Chicago Lawyer went to press, the case could significantly redefine and expand the power of Illinois prosecutors, should Towne win. A loss — or simply the Supreme Court declining to hear Towne’s appeal from a 3rd District Appellate Court ruling — could make LaSalle County the target of civil lawsuits filed by up to 77 people arrested for drug offenses since 2011, which would complicate Towne’s re-election bid next November, the first time he will run in a contested race.

The question at the heart of the case is about the proper roles of police and prosecutors: Can a state’s attorney’s investigator make arrests?

Other questions surround Towne’s forfeiture fund, which swelled during the four-year run of his controversial State’s Attorney Felony Enforcement Unit, known as SAFE.

An analysis of expense records obtained through a Freedom of Information Act request shows roughly one-fifth of the spending from Towne’s drug forfeiture account — more than $95,000 — was spent on travel expenses for law enforcement conferences. That total includes more than $17,000 in checks made out to him or his employees for “per diem” payments while traveling.

Towne downplays questions about that spending, stressing the importance of continuing education for his attorneys and investigators. Other lawyers, though, say it is evidence that the SAFE unit was nothing more than a brazen cash grab.

“He completely eliminated one of the checks and balances of government on police behavior,” said Stephen Komie, the lawyer opposing Towne in the case awaiting a Supreme Court decision. “He made himself chief of police of his own highway patrol.”

However one chooses to define LaSalle County, its most important feature for purposes of this story is the 30-mile stretch of Interstate 80 that divides the county’s northern and southern halves. I-80 similarly divides the nation, stretching nearly 3,000 miles from San Francisco to Teaneck, N.J., just outside Manhattan, making it a convenient route for large-scale drug trafficking.

Since 2011, the roughly 1 percent of the road under LaSalle County’s jurisdiction has been a particularly treacherous sliver for drug runners. That’s when Towne created the SAFE unit by hiring a longtime friend and retired Illinois State Police officer as a special investigator in his office.

Towne’s special investigators had one job: Pull over cars with out-of-state plates suspected of hauling illegal drugs or the cash resulting from a drug deal. If drugs are found, make the arrest and confiscate the contraband and cash.

Towne is particularly focused on the cash.

“The best way to punish drug dealers is to take their money away,” Towne said. “They can always get more drugs. But the money is why they do this.”

The SAFE unit initiated 77 drug-offense prosecutions. The majority were for possession of cannabis with intent to deliver. Of those charges, 65 resulted in convictions, according to records obtained through a Freedom of Information Act request.

As for the money, similarly obtained bank records show deposits in the LaSalle County state’s attorney drug forfeiture account totaled at least $564,616.03 from the beginning of 2011 through August. In the SAFE unit’s first year of operation, 2011, the account took in $258,732.36 — more than six times the collections of the previous year, $41,895.79.

By any measure, the SAFE unit was effective. It is also illegal, according to a scathing order handed down by a 3rd District panel in June.

“The prosecution of drug dealers and traffickers is indisputably a duty of the state’s attorney,” Appellate Justice Daniel L. Schmidt wrote. “Outfitting his own drug interdiction unit is not.”

Prior to Schmidt’s order, the SAFE unit faced a number of legal challenges. But, for a while, it received the blessing of the 13th Judicial Circuit Chief Judge H. Chris Ryan Jr.

That changed after the arrest of Cara Ringland.

In January 2012, Ringland drove a U-Haul truck eastbound on I-80 past SAFE unit special investigator Jeff Gaither, who was scanning for suspicious vehicles. Gaither, a 24-year veteran of the Illinois State Police, saw an infraction a lesser-trained officer might miss: One of the van’s mud flaps was more than 12 inches off the ground.

As Gaither pulled out to stop the U-Haul, he explained to a Spring Valley police officer in his squad car (for training) that the mud flap provided probable cause for an arrest.

Gaither and the SAFE unit’s other investigators, all longtime drug interdiction specialists for police departments, used a number of such tip-offs to spot cars that may be carrying drugs.

The U-Haul, for instance, was suspicious for a reason other than the mud flap. It was driven by a woman. In court testimony, Gaither said, “It’s not very common that you see a young lady in a U-Haul by herself.”

During an interview, Towne provided other examples of what are often referred to by police as indicators. Chances are good, he said, that a mobile home headed eastbound in January will be “full of dope.”

“Because who goes camping on the East Coast in January?” he said.

Eastbound cars outfitted with bike racks in February raise police “antennas” for similar reasons.

“Who goes bike riding in February?” Towne asked rhetorically, adding that drug runners employ bike racks because they don’t expect an officer to go through the trouble of removing them in order to access a trunk.

Even if Towne’s officers weren’t wise to such tricks, they would prove no match for the nose of the SAFE unit’s dog, which stood ready at all times a SAFE vehicle was patrolling the highway. This arrangement can be attributed to another bit of prosecutorial smarts. Having a drug-sniffing dog on the scene in minutes muzzles a common defense that an officer’s detention of a suspect was unlawfully long, Towne said.

These tactics garnered criticism from a number of local attorneys, including Matt Mueller, who according to court records represents a client who had $38,000 in cash seized despite never being charged criminally. The client had grow lights in his car, transporting them from Michigan to Colorado, both states where some form of marijuana is legal under state law.

“This unit pulled over out-of-state vehicles for often suspect reasons,” Mueller said.

After a dog indicated the presence of drugs in Ringland’s U-Haul, she helped officers unlock the storage compartment, which contained roughly 100 pounds of marijuana packed in cardboard boxes. Gaither placed her under arrest and for the first time since being pulled over, Ringland revealed her nerves, according to a transcript of a recording of the arrest.

“F---,” she says. “What do I do now?”

Shortly thereafter, Gaither told Ringland something that, even if she doesn’t know it now, will later be the cause for a sigh of relief.

“We work for the state’s attorney’s office,” Gaither said. “So, that’s the person that will be charging you.”

To a longtime defense attorney, that statement is a red flag.

Jeffrey Urdangen, director of the Center for Criminal Defense at Northwestern Pritzker School of Law and a defense lawyer for more than 20 years, said he has never encountered a state’s attorney’s office that makes arrests. Doing so would “taint” the requirement that state’s attorneys objectively review cases brought to them by police before deciding on charges, he said.

“If it’s the state’s attorney making the arrest or his right-hand investigator,” Urdangen said, “it would be difficult for him to have that required detachment to step back and evaluate the case.”

Towne traces the SAFE unit’s heritage to the Illinois State Police’s Operation Valkyrie, a dedicated marijuana interdiction program that ran from 1984 through the mid-1990s and then for another 18 months from mid-1997 through 1998.

Despite being shuttered after concerns that it was racially targeting drivers (a 7th U.S. Circuit Court of Appeals ruling said it wasn’t), Valkyrie was an overwhelming success as judged by the state police. In 1998, state troopers saw a 180 percent increase in marijuana seizures, nabbing more weed than officers in some border states, a state police annual report says.

Valkyrie also formed a friendship between Towne, who started in the LaSalle County state’s attorney’s office in 1992, and Dan Gillette, a state trooper who Towne said annually seized among the most marijuana of any officer in the state. They worked on drug cases together. They were both upset with Valkyrie’s termination.

“Dan didn’t get to do what he loved to do anymore and I didn’t have the volume of cases that I used to have in that area,” Towne said. “We had both often discussed the idea that when the time was right — when he retired from the state’s police and if I was ever the state’s attorney here — that we would, I guess, reunite.”

They did just that in November 2011 when the SAFE unit hit the streets for its first season, which coincides with marijuana harvests and runs from September through April.

For Towne, the unit brought cases to his office and, eventually, money to his forfeiture fund through seizures of cash. The unit was responsible for 25 prosecutions in its first year, which records show were all related to marijuana offenses. The next year, it brought in 27 cases. Then 17. Then eight, in its last, shortened season. Of the 77 prosecutions the unit brought in, eight were for something other than cannabis.

For the retired officers like Gillette whom Towne hired, the SAFE unit provided supplemental income. The state’s attorney’s employment records show Gillette’s gross salary in 2012 was $28,517.27. In 2013, it was $48,675, then $22,235.72 in 2014 and $36,771.48 this year, totaling nearly $140,000 before taxes. Gaither’s salaries were similar.

Ed Jauch, another former police officer who served as the unit’s commander, hailed the unit for arresting high-profile drug traffickers from across the country.

According to Jauch, the unit helped bring down an organized crime family from Philadelphia. It arrested a member of al-Qaeda in a case that stretched from Mexico to New York to Canada. Another bust resulted in drug traffickers from California selling a recording studio there to pay fines in Illinois — money that would eventually flow to LaSalle County. They even pulled over a bus carrying Vince McMahon, the chairman of wrestling’s WWE.

“They weren’t doing anything wrong,” Jauch clarified.

As for the success of the program, Jauch said, “We’ve been over-the-top successful in my opinion,” during a phone call while driving to Massachusetts to attend a hearing in a case that involved a $115,000 cash seizure. “It just makes sense. I don’t know why others aren’t doing it.”

For Jauch, Gaither, Gillette and Towne, the SAFE unit also came with a heavy travel schedule.

Towne went on at least 14 trips — from Las Vegas to Boston to Seattle to Washington, D.C. — from June 2011 through March this year, averaging nearly one trip every three months, his drug forfeiture fund shows.

The drug forfeiture account paid for all travel expenses, including rental cars, airport parking, hotels and airfare. Towne also received per diem payments for his time away from home. Those payments totaled $3,800, bank records show.

On the political front, Towne highlights other spending from his drug fund: Checks he writes to North Central Behavioral Health Systems that fund drug and alcohol presentations given weekly to approximately 40 “high-risk” students at a local school. The director of the LaSalle County Safe School Program credits Towne for keeping that counseling affordable.

“If I can take money out of a drug dealer’s wallet to pay for it, I think the voters of LaSalle County would love me for it and do love me for that,” Towne said.

In an interview, Towne said he writes a $20,000 check to that organization every year, which conflicted with bank records from his drug fund. Towne provided receipts of checks to North Central Behavioral Systems from 2011 through this year worth a total of $35,545.

That number is easily eclipsed by the office’s travel expenses.

In total, employees from the office went on at least 22 trips during that four-year span, spending more than $95,000, according to bank records. Presented with that information in an interview, Towne defended the trips, saying he has “no problem” sending employees or himself to conferences.

“I’m not in this just to take free trips on the drug dealers’ money,” he said. “What we do out there — what we deal with out there — can be very dangerous. If we don’t know what to look for and we don’t know what to do and we’re not getting regularly updated on what’s going on, my officers, I think, are in jeopardy.”

The best-attended trips were to Las Vegas, where six employees including Towne and the SAFE unit investigators traveled in February 2013 and 2014, according to bank records. The trips were to the annual Heartland Law Enforcement Training Institute, which focused on gangs and narcotics.

In an interview, Towne highlighted that 2014 trip for the training it provided on “sovereign citizens,” a group of extremists who denounce the government and, in some cases, have killed police officers.

Ultimately, the questions around Towne’s spending may hinge on the definition of a provision accompanying the funds he receives from SAFE’s seizures: They “must be used for the enforcement of the Cannabis Control Act and the Controlled Substances Act.”

Ben Ruddell, criminal justice policy attorney at the American Civil Liberties Union, said he had been alerted to the SAFE unit’s court case and the questions surrounding its finances. He said he is “strongly interested” in the case but has yet to decide how or if his organization may get involved.

Defense attorney Komie’s phone rang shortly after Ringland’s arrest in 2012. He got in his car and drove the roughly two-hours to LaSalle County from Chicago.

After bonding out Ringland, Komie pried into the background of the arresting officer, Gaither.

He found that Towne’s office had skipped a step required by Illinois law before hiring Gaither as a special investigator. They never sent his fingerprints to the Illinois State Police.

On that basis, Chief Judge Ryan suppressed the evidence against Ringland that Gaither’s illegal stop had gathered — the 100 pounds of marijuana. That ruling was the basis for similar rulings in four other cases.

The 3rd District Appellate Court went further, ruling the SAFE unit violated the statute authorizing state’s attorney’s special investigators. That statute says investigators can “serve subpoenas, make return of process and conduct investigations which assist the state’s attorney.”

“Seeking out criminal activity by virtue of patrolling the highway is a far cry from ‘standing ready’ to assist police,” the ruling says.

Since the ruling, Julie Ajster, a Peru defense attorney, said she has been working to file civil lawsuits against Towne and LaSalle County for wrongful arrests and cash seizures made by the SAFE unit.

“Brian Towne put his officers on the interstate to pull over drivers as a cash grab,” Ajster said. “Patrolling Interstate 80 is a job for the state police. Prior to and after SAFE there are law enforcement agencies whose job it is to patrol Interstate 80.”

Despite this ruling, Towne insists he has the power to swear in investigators and grant them the same authority as a police officer. He said the appellate court didn’t fully understand how SAFE officers gained their authority to act as police officers because the unit changed its structure after Ringland’s arrest.

In truth, the Illinois statute defining state’s attorneys is nothing short of a tangled mess on the matter.

In one section, it says special investigators can serve only three functions: “Serve subpoenas, make return of process and conduct investigations which help the state’s attorney in the performance of his duties.” This is what the 3rd District relied upon to rule SAFE illegal.

Yet, in another section, the statute says state’s attorney’s investigators have “all the powers possessed” by investigators hired by the state’s attorney’s appellate prosecutor. Under a separate statute defining the appellate prosecutor, special investigators “have all the powers possessed by policemen” so long as they work in “cooperation” with the law enforcement agencies where they operate.

This apparent loophole is what Towne says justifies the SAFE unit.

That language was effectively inserted into the appellate prosecutor statute in August 2012, just months after Ringland’s arrest. Towne is chairman of the State’s Attorney’s Appellate Prosecutors Board of Governors. He denied involvement in changing the law.

“We had kind of talked about, ‘Do we need to ask the legislature to make changes or adjustments to be able to do this?’” he said. “And ultimately, we were pretty comfortable that the law allowed us to do what we were doing.”

Towne often claims other state’s attorneys, including those in Cook County and Winnebago County, use special investigators in the same way he does: To make arrests. But state’s attorneys in both Cook and Winnebago disputed that claim.

The Cook County state’s attorney’s investigative bureau consists of approximately 120 sworn officers whose primary function is to provide investigative and logistical support to the office’s assistant state’s attorneys in their preparation and presentation of cases, said spokesperson Sally Daly.

“As we are a prosecutor’s office, we do not initiate independent police investigations,” Daly said in a statement.

“The investigators that work in our office do not make arrests,” said Winnebago County State’s Attorney Joseph P. Bruscato.

In practice, Towne appears to be one of only two of the state’s 102 prosecutors who believes his office has the right to pull people over on the highway. The other is Tom Gibbons of Madison County, who started his own SAFE unit after studying Towne’s.

“One of the things I thought was especially interesting (about Towne’s SAFE unit) was the coordination with local law enforcement,” Gibbons said. “Which is exactly what the statute allows for state’s attorney investigators to do.”

Both Towne’s and Gibbons’ investigators are off the highways at the moment, they said. Even if the Supreme Court rules against them, they said they could still operate in an “assistance” role with local law enforcement.

Towne remains proud of the SAFE unit. He said he was happy to help Gibbons start his own, except for one minor quibble: They used the same name.

“I teased them about it, but, you know, I’m fine with that,” Towne said. “Imitation is the highest form of flattery, they say.”

As for Ringland’s attorneys’ thoughts on the matter, they are best summed up by the first sentence in a filing asking the Supreme Court to deny a hearing on the case: “The history of this litigation reflects a prosecutor’s office engaging in a level of arrogance and apathy seldom seen concerning Illinois statutory requirements.”

For an in-depth look at the ways Brian Towne's SAFE unit may violate state law, read the follow-up piece, “LaSalle Bounty: How a prosecutor's police force turned a highway into a payday,” published in the March 2016 issue of Chicago Lawyer.