Kane County Nuggets

This is the March 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 612 (Duration 44:19)

The March 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Patel

State failed to produce discover for the SSS Hearing, they subsequently blew Trainor.

2. People v. Caraballo

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

3. People v. Sanchez

Defendant is arrested at his home where he found plastered and driven back to the crash scene by police.

4. People v. Thomas

Police see a defendant hand a gun to another person and then try to run and hide.

5. People v. Holmes

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

6. People v. Webb

Another version of UUW is held unconstitutional; this time it's the one banning tasers.

7. People v. Cunningham

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

8. People v. Drake

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

9. People v. Lewis

One gun expert testified about the work done a different expert who was out on medical leave.

10. People v. Spicer

Can the prosecution compel you to give up your phone password?

11. People v. Othman

Has the plain error gotten much more liberal?

12. People v. Smith

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

13. People v. McArthur

17 year old held for more than 70 hours before his probable cause hearing, nonetheless, his confessions were all voluntary.

14. People v. Ruiz

Defendant's conversation with his coarresttee is recorded and his friend kept telling him he always takes things too far.

15. People v. Corral

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

16. People v. Macklin

Was defense counsel ineffective for not calling an eyewitness expert witness?

17. In re J.P.

Juvenile court act allows a judge to order the removal of a gang tattoo.

18. People v. Rebollar-Vergara

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

19. People v. Garcia

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

20. People v. Holt

The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.

21.  People v. Bausch

Grabbing your wife's purse can constitute insulting and provoking contact.

22. People v. McCurine

Defendant says he was prejudiced and due process was violated when the state was allowed to tell the jury he was charged with being a habitual criminal.

23. People v. James

Another SORA conviction reversed because police failed to investigate the circumstances of his living arrangement.

24. People v. Johnson

No valid jury waiver in the record even though he apparently signed the waiver form.

25. People v. Thomas

Defendant refused to sign the jury waiver but still wanted a bench trial.

26. People v. Maya

Even "obvious" matters of sound trial strategy may be rebutted by defendant, here the lawyer kept a sheriff's deputy on the jury.

27. People v. Mooney

Agreeing to continuance was ineffective, outright reversal is the only remedy.

People v. Cunningham, 2019 IL App (1st) 160709 (March). Episode 611 (Duration 9:18)

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

See Also These Prior Constitutionality Cases

• Episode 610 - People v. Webb, 2019 IL 122951 (March) (UUW Provision Banning Stun Guns Is Shot Down)
• Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?)
• Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional)
• Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional-This Was A Park)
• Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional - School Was The Place In Question) 
• Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court Nonprobationable Class 4 AUUW Invalidated)
• Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s)

Gist

The State charged defendant with unlawful use of a weapon and reckless discharge of a firearm based on defendant having shot himself in the leg.

Charges

The charging instrument stated the State sought to have defendant sentenced as a Class 3 felon because the incident took place in an apartment owned by the Chicago Housing Authority and used as public housing.

UUW Public Housing

Section 24-1(a)(4), (c)(1.5) (in public housing) of the Criminal Code of 2012 (Criminal Code) which reads, in pertinent part, as follows:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act; or...* * *

(c) Violations in specific places. * * * (1.5) A person who violates subsection 24-1(a)(4) *** in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development *** or on any public way within 1,000 feet of the real property comprising any *** residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5).

Facts

Defendant was messing around with a gun at his buddies house.

The responsible lady of the house she lived in her apartment with her boyfriend and daughter. When She arrived home on the day defendant was shot, defendant, her boyfriend, and two others were in the apartment. The women saw them running from the area of two back bedrooms.

Defendant exclaimed, “I’m shot, I’m shot.”

When she returned to the living room she saw defendant lying on the floor bleeding from his right leg. She then took the gun from her boyfriend and put it in a different apartment in the building.

When the police got there she was evasive at first but eventually retrieved the gun and gave it to police.

Did Defendant Live There?

At the time defendant was shot he had been staying in her apartment for about one week, but defendant did not pay any rent or bills.

Defendant Confesses

Once at the hospital defendant apologized to the Sergeant for not telling him the truth earlier and stated he (defendant) had shot himself.

Guilty

The court found defendant guilty of UUW and reckless discharge of a firearm and sentenced him to three years’ imprisonment for UUW and a concurrent term of two years’ imprisonment for reckless discharge.

Issue

Defendant argues Chairez demonstrates that section 24-1(a)(4), (c)(1.5) (in public housing) is facially unconstitutional because Chairez establishes that to survive a constitutional challenge the State “must make a strong showing of a substantial justification for subsection (c)(1.5), as well as a close fit between a law that bans firearms in public housing residences and its end: the safety of those residents and invitees.”

The Chairez Standard

The Chairez court stated that answering the question of whether a portion of the UUW statute is constitutional “involves a two-part approach.” Id. ¶ 21.

First, we conduct a textual and historical analysis of the second amendment to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment’s protection at the time of ratification. If the conduct falls outside of the scope of the second amendment, then the regulated activity is categorically unprotected, and the law is not subject to further second amendment review.

Second, if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights. 

Clearly Some Bans & Restrictions Are Proper

The scope of the second amendment’s protection is not unlimited.

Some “presumptively lawful regulatory measures” (Heller, 554 U.S. at 627 n 26) include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (Heller, 554 U.S. at 626-27).

But Illinois courts will apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights under the second step, even where a “presumptively lawful regulation” is involved.

Under this approach, the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. 

A severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. However, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.

Thus, the heightened means-end inquiry is a sliding scale that is neither fixed nor static.

Thus, a substantial curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. Conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need.

The 720 ILCS 5/24-1(a)(4) Exception

Section 24-1(a)(4) provides an exception for persons in their “own abode [or] legal dwelling.” 720 ILCS 5/24- 1(a)(4).

Therefore, the statute at issue in this case could not be applied to a resident of public housing. On the face of section 24-1(a)(4), (c)(1.5), residents of public housing are not prohibited from carrying or possessing a firearm “in residential property owned *** by a public housing agency.” 720 ILCS 5/24-1(a)(4), (c)(1.5).

Residents of public housing, to whom the statute at issue does not apply. As such this case is more akin to a ban on guns merely in particular places. It is a specific ban on the carriage of guns by nonresidents in public housing.

Strong State Interest

The State argues the provision at issue “is substantially related to the important government interest in preventing harm to families, children, seniors, persons with disabilities and other vulnerable populations who reside in public housing.” The State argues that, like the public park in Bell, the law only prohibits firearms “in” a public housing building and, like public parks, public housing buildings are areas where large numbers of people, including children, congregate, and for all the same reasons and the same rationale, the prohibition on possessing firearms in Chicago Housing Authority (CHA) buildings is a reasonable measure to secure public safety.

Not A Categorical Ban

The statutory provision at issue in this case does impose some burden on visitors’ to public housing second amendment rights. However, this burden is not a categorical ban on the carrying of firearms in public and therefore a “more rigorous showing” under heightened.

There is more than a “rational” fit between “protecting the safety of residents, guests, and others who are present from time to time at housing facilities” and limiting the number of guns on public housing properties, thereby limiting potential violence.

Holding

The law and the State’s justification for the provision at issue are not so unreasonable as to fail intermediate scrutiny.

The state’s aim is to protect vulnerable populations in public housing facilities and it has done so with a modest and easily avoidable burden on its citizens’ second amendment rights. We hold the statutory provision at issue in this case survives the heightened intermediate scrutiny that is applicable in this instance and, thus, defendant’s facial challenge to the statute fails.

On A Side Note...

Here, the evidence adduced at trial is insufficient to prove defendant acted recklessly beyond a reasonable doubt.

The reckless discharge conviction is vacated.

The record contains no facts from which to reasonably infer defendant consciously disregarded a substantial and unjustifiable risk to the bodily safety of an individual. 

See Also

• Episode 531 - People v. Peel, 2018 IL App (4th) 160100 (August) (Another Idiot With A Gun – Reckless Discharge?)
• Episode 313 - People v. Grant, 2017 IL App (1st) 142956 (February) (Reckless Discharge Requires Endangering The Bodily Safety Of “An Individual”)
• Episode 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)
• Episode 066 - People v. Moreno, 2015 IL App (3d) 130119 (March) (What’s so wrong about about a little firearm discharging during the holidays?)

People v. Webb, 2019 IL 122951 (March). Episode 610 (Duration 6:17)

Another version of UUW is held unconstitutional; this time it’s the one banning tasers.

Charges

Defendant was charged by misdemeanor complaint with violating section 24-1(a)(4) of the UUW statute (720 ILCS 5/24-1(a)(4)) after he was discovered carrying a stun gun in his jacket pocket while in his vehicle on a public street.

Gist

He was charged by misdemeanor complaint with violating section 24-1(a)(4) after he was found carrying a stun gun in his backpack in a forest preserve, a public place.

Issue

At issue is the constitutionality of the portion of section 24-1(a)(4) of the UUW statute relating to stun guns and tasers.

Illinois Unlawful Use of Weapons (UUW) Statute

This provision states, in pertinent part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser[2] or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act[.]”

720 ILCS 5/24-1(a)(4)(iv).

“A ‘stun gun or taser’, as used in this paragraph (a) means (i) any device which is powered by electrical charging units, such as, batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out a current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning or (ii) any device which is powered by electrical charging units, such as batteries, and which, upon contact with a human or clothing worn by a human, can send out current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning[.]”

720 ILCS 5/24-1(a)(10).

The Second Amendment

The second amendment to the United States Constitution provides,

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

U.S. Const., amend. II.

A Brief History Before Aguilar

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court of the United States held that the second amendment secures for individuals the right to keep and bear arms and that, through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is fully applicable to the states.

Then came Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) and People v. Aguilar, 2013 IL 112116 (holding the provision of the aggravated unlawful use of a weapon statute that categorically prohibited the possession and use of any operable firearm for self-defense outside the home violated the second amendment).

See also Mosley, 2015 IL 115872 (holding unconstitutional under the second amendment the portion of the aggravated unlawful use of a weapon statute that criminalized the possession of an uncased, loaded firearm on a public way).

In determining whether a statutory provision violates the second amendment we first consider whether the provision imposes a burden on conduct that falls within the scope of the amendment. People v. Chairez, 2018 IL 121417, ¶ 21.

Second Step Analysis

If it does not, our analysis comes to an end. 

Otherwise, we move to the second step of the inquiry, in which we must determine and apply the appropriate level of constitutional scrutiny.

In this case, the State concedes that stun guns and tasers are bearable arms that fall within the protection afforded by the second amendment. We agree. In Heller, 554 U.S. at 582, the Supreme Court rejected the idea that the second amendment extends only to “those arms in existence in the 18th century.” Instead, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Heller defined “bearable arms”: Stun guns and tasers may be taken into one’s hands and used both for defense or “to cast at or strike another.” Clearly, stun guns and tasers are bearable arms within the meaning of the second amendment. People v. Yanna, 824 N.W.2d 241, 244 (Mich. Ct. App. 2012).

Accordingly, the State concedes that stun guns and tasers are bearable arms that fall within the scope of the second amendment.

But The Section Has A Conceal & Carry Exception

Subparagraph (iv) of section 24-1(a)(4) excludes from the offense of UUW only those weapons that are carried or possessed “in accordance” with the Carry Act by a person who has been issued a concealed carry license.

To be “in accordance” with a statute means to be in agreement or conformance with that law.

In our view, the most natural reading of the requirement that weapons be carried or possessed “in accordance” with the Carry Act is that the weapons, themselves, are of the type for which a valid concealed carry license may be issued under the Carry Act.

Indeed, any other reading would lead to absurd results.

Under the State’s reading of the statute, as long as a person has a concealed carry license for a handgun, that person may carry any other weapon, including a rifle or shotgun, and still be acting “in accordance” with the Carry Act, even though the Carry Act is specifically limited to handguns and does not allow for the concealed carry of rifles or shotguns.

We do not think the State’s interpretation is what the legislature intended.

You Can’t Get A Conceal & Carry License For A Stun Gun

Our conclusion that stun guns and tasers cannot be carried or possessed “in accordance” with the Carry Act because a concealed carry license cannot be issued for those weapons is further supported by section 24-2(a-5) of the UUW statute.

This provision states that section 24-1(a)(4) of the UUW statute does not “apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.” 720 ILCS 5/24-2(a-5).

When read together with section 24-1(a)(4), section 24-2(a-5) makes clear that only those weapons that can be licensed under the Carry Act are meant to be excluded from the reach of the UUW statute.

Holding

Given the foregoing, we reject the State’s argument that section 24-1(a)(4) is merely a regulation of stun guns and tasers. Rather, that provision sets forth a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public.

Thus, that provision necessarily cannot stand.

Accordingly, we hold the portion of section 24-1(a)(4) that prohibits the carriage or possession of stun guns and tasers is facially unconstitutional under the second amendment.

See Also

• Episode 387 – People v. Holmes, 2017 IL 120407 (July)(Does Aguilar Mean Stops Based On Seeing A Gun Are Unconstitutional?)
• Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional)
• Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional) 
• Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional)
• Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s)
• Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court)
• Episode 008 – People v. Gayfied, 2014 IL App (4th) 120216-B (July) (only some districts support the extension of bans under AUUW)

People v. Thomas, 2019 IL App (1st) 170474 (March). Episode 609 (Duration 11:51)

Police see a defendant hand a gun to another person and then try to run and hide.

First See

• Episode 552 - People v. Bonilla, 2018 IL 122484 (October) (Supreme Court Is Pushed To Decide If Apartments Have Less Constitutional Protection Than Houses)
• Episode 464 - Recap of the Apartment v. House Controversy
• Episode 595 - In re K.M., 2019 IL App (1st) 172322 (February) (Police Still Haven’t Quite Got The Hang Of This Property Based Rights Thing When They Trample Onto Private Property)
• Episode  387 - People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?)
• Episode 601 - People v. Holmes, 2019 IL App (1st) 160987 (March) (Police Told Man Has A Gun An Unconstitutional Stop Then Happens)

Gist

Defendant was charged with various counts of aggravated unlawful use of a weapon following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in Chicago, on March 25, 2015.

Loitering Youths

As they drove slowly down Kenwood Avenue, from about five feet away, they observed four or five males “loitering on the sidewalk in front” of the aforementioned apartment building.

At that point, the officer saw two of the males, later identified as defendant and his friend, “flee into the building.” At that moment, the officer did not observe defendant holding a gun. Police stopped their car and jumped out and followed the two men.

The men ran inside the apartment building while the other members of the group simply stood still on the sidewalk.

Police Enter The Building

Subsequently, the officer “reopened the door,” then stepped inside the building to what he described was the “common area.” The evidence thus indicates that the building was unlocked, although the officer never explicitly stated this.

Once inside, the officer observed a hallway, and to the right was a first-floor stairwell, where defendant and his friend were standing. At that point, the officer saw that defendant had a gun. He promptly handed it his friend before fleeing to the second floor.

The officer “probably” said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the door behind him. His friend was was “locked out,” froze and then threw the handgun on the second-stair landing. Buddy was detained and arrested. 

The Gun

Police recovered the loaded firearm, a .380, and returned to the locked apartment unit.

The Apartment Unit

A female, whom the officer believed was defendant’s girlfriend, opened the door.

The officer arrested defendant, handcuffing him just outside the unit. 

Only after that did officers learn defendant did not have a FOID or concealed carry card.

Trial Court Grants The Motion

The court noted that there was no evidence of criminal activity from the outset “to suggest that this defendant should be stopped in any way.” The court found that outside the apartment complex, defendant was not committing any crime, and there was no reason to believe he was committing a crime, yet police chased him anyway. The court stated that it was during the “pursuit” that police observed a weapon. However, given the laws permitting the public to possess guns outside the home via a FOID card and concealed carry license, the court ruled that when the police observed defendant with a handgun, they did not have probable cause to stop, seize, and then arrest defendant.

The court noted that the gun was not fully exposed but rather found that “a moment in time in your hand should be partially concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun recovered “subsequent to the violation of this defendant’s constitutional rights” had to be suppressed under the exclusionary rule.

Issue

The question of law at issue in this case is whether a fourth amendment violation occurred when the police entered an unlocked multiunit apartment building without a warrant and, once inside the common area, observed defendant hand his friend a gun just before both fled upstairs, with defendant entering his purported apartment unit while the friend then discarded the gun.

Reasonableness Requirement

Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop (and therefore necessarily seize) a person for temporary questioning if he reasonably believes the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91.

Thus, a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001).

The Initial Encounter: Unprovoked Flight

An individual’s unprovoked flight on seeing police in an area known for crime is suggestive of wrongdoing and may justify police suspecting that individual of criminal activity, which warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113.

That the defendant’s flight from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain that individual to resolve any ambiguity.

Here, the most rational inference from the officer’s testimony is that the police presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable suspicion. While defense counsel suggested that defendant and Turner could have mistaken the unmarked police vehicle for a potential drive-by shooter, for example, this innocent explanation does not lessen the officers’ objective in resolving any ambiguity under the law.

Contrary to the trial court’s finding, there was no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where there was no real encounter or submission.

Police Entry Into Unlocked Apartment Building: Privacy Interest in Apartment Common Area

Notably, the fourth amendment protects people, not places. Pitman, 211 Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where those people are. As such, a defendant who objects to the search of a particular area must prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d at 22.

Thus, a “search” for purposes of the fourth amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Carodine, 374 Ill. App. 3d at 22.

The State argues there was no reasonable expectation of privacy in the common area of the unlocked apartment building, which police were permitted to enter. The State further asserts that it was in this common area that police observed defendant “committing a criminal offense” and, as such, there was no “search” at issue. We are inclined to agree.

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st) 143255, ¶ 20. In that sense, Smith, 152 Ill. 2d 229, is instructive. See People v. Smith, 152 Ill. 2d 229, 244 (1992) (police enter apartment building and overhear incriminating conversation police had a right to be there and defendant had no expectation of privacy). See also Carodine, 374 Ill. App. 3d at 24 (holding the defendant did not have an objective expectation of privacy to the dryer vent because it was located in a common area where other tenants of the building, the landlord, and members of the public had access; therefore, the officer’s opening and reaching inside of the vent was not a fourth amendment “search”).

What About Bonilla?

In Bonilla, 2018 IL 122484, the use of a drug-sniff dog at the threshold absent a warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment rights. Similarly distinguishable is Burns, 2016 IL 118973, ¶ 44, where the court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s apartment door, located within a locked apartment building, violated the defendant’s fourth amendment rights.

The present case is more like Smith as defendant failed to produce evidence showing the officers’ investigation took place in a constitutionally protected area or one where he had a reasonable expectation of privacy, or that it resulted in an unlicensed physical intrusion.

Here, the officer entered the unlocked apartment building at a reasonable hour and stepped into what he described was the “common area” of the building. Our supreme court has expressly stated that the “term ‘common area’ suggests an area left open for common or public use,” which necessarily negates any expectation of privacy. People v. Janis, 139 Ill. 2d 300, 318 (1990); Smith, 152 Ill. 2d at 245-46.

Wasn't Locked

Defendant did not present any testimony that the unlocked multiunit building was customarily locked or had a “no trespass” sign posted outside such that he might have an expectation of privacy there. The police also had a legal right to be there, just as any other tenant, landlord, delivery person, or member of the public.

Police may even lawfully enter the curtilage as long as they do not exceed the scope of being there. That is, a police officer not armed with a warrant may approach a home and knock because that is “no more than any private citizen might do.” Florida v. Jardines, 569 U.S. 1, 8 (2013).

We thus reject defendant’s contention on appeal that the location where the officer observed the gun hand-off was curtilage, i.e., the area immediately surrounding and associated with the home. The evidence simply does not support that conclusion.

The police did not exceed the scope of their license to be there.

Holding

Accordingly, there was no fourth amendment search implicated simply by the police officers’ entry into the common area of this unlocked building. That is because a search implies prying into hidden places for concealed items, and it is not a search to observe that which is in open view. People v. Bridges, 123 Ill. App. 2d 58, 67 (1970).

Likewise, there was no seizure of defendant’s person, since police had not then restrained defendant’s liberty. Again, it was defendant’s burden to show there was a search or seizure and that it violated his fourth amendment rights, yet defendant did not fulfill that burden.

Firearm Presence and Probable Cause To Arrest

Defendant maintains that the police lacked reasonable suspicion or probable cause to believe he was committing a crime because possession of a gun is not per se illegal and the police failed to ask defendant whether he had a valid FOID card or concealed carry license prior to arresting him.

The very nature of the Illinios conceal and carry law is that a gun may be carried if concealed, that is, not seen by the public. See Concealed Carry Act 430 ILCS 66/10, 25. A “ concealed firearm” means “a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public.” Id. § 5. As a result, the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns in view of the public.

A person with a concealed firearm must at all times possess his concealed carry license, unless he is on his own land or in his abode or legal dwelling (i.e., home) or acting as an invitee on another person’s land or in his or her home. Id. § 10(g).

The parties have not cited, nor has our research revealed, an Illinois case demonstrating that the common area of a multiunit apartment building constitutes “land,” “abode,” or a “legal dwelling,” within the meaning of the Concealed Carry Act. See People v. McClure, 218 Ill. 2d 375, 382 (2006) (to effect the legislature’s intent, courts should interpret the language of a statute according to its plain and ordinary meaning).

We decline defendant’s invitation to characterize the common area of an apartment building as a “private residence,” where it does not constitute the place where someone actually dwells or maintains his abode. See Black’s Law Dictionary (10th ed. 2014) (defining “residence” as the “place where one actually lives” or a “house or other fixed abode.”).

In addition to defendant’s aforementioned flight, here, defendant’s actions on seeing police of handing his gun to another person in the common area of an apartment building, which was not his land or home, and then fleeing the scene, in totality, are facts that gave police probable cause to believe at the very least that defendant illegally possessed the gun. See Williams, 266 Ill. App. 3d at 760 (the trier of fact could infer that the defendant who ran from police and threw his gun into the garbage did not have a FOID card while fleeing from police).

The facts indicated a probability that defendant did not have the necessary gun licenses, that he had violated the FOID Card Act and the Concealed Carry Act with an illegal transfer to another individual, and that he had violated the Concealed Carry Act by exposing his gun in a semipublic place.

Thus, the existence of a possible innocent explanation, like defendant’s possession of the required gun licenses, did not necessarily negate probable cause. See People v. Geier, 407 Ill. App. 3d 553, 557 (2011).

What About Holmes?

We wish to emphasize that under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity. Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has a FOID card.

We thus caution against an “arrest first, determine licensure later” method of police patrol.

However, as set forth above, mere gun possession was not the scenario that presented itself to police in this case. The totality of the circumstances suggested criminal activity. 

Abandonment of the Firearm And The Arrest

Regardless, given the sequence of events in this case, we agree with the State that defendant had abandoned his weapon before police even collected the gun and arrested defendant. Notably, abandoned property is not subject to fourth amendment protection since no one can have a reasonable expectation of privacy in an abandoned item. Pitman, 211 Ill. 2d at 519-20; see also Abel v. United States, 362 U.S. 217, 241 (1960) (noting there is nothing unlawful in the government’s appropriation of abandoned property).

As such, abandoned property may be searched and seized without probable cause. People v. Sutherland, 223 Ill. 2d 187, 230 (2006). For abandonment, the State must demonstrate by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the search officer’s position to believe that the defendant relinquished his property interest in the item searched or seized. Pitman, 211 Ill. 2d at 520. As this is an objective test, it matters not if the defendant desires to later reclaim the item. What matters is the external manifestations of the defendant’s intent as judged by a reasonable person who possesses the same knowledge available to the police. 

Here, contrary to defendant’s suggestion, defendant did not thoughtfully hand his gun to his buddy for safekeeping with strict directions or indicate that he would later reclaim the gun. Rather, this is the quintessential abandoned property case, characterized by a fleeing defendant who relinquishes an object because discarding the item might make it easier for him to later claim that he never possessed it.

In this case, defendant physically relinquished his property to his friend, while knowing police were in hot pursuit. Defendant thus exhibited he did not wish to be caught in possession of the gun.

His friend then discarded the gun in an area where anyone could have retrieved it. The total circumstances indicate a reasonable person in the officer’s position would believe that defendant had relinquished his possessory interest in the gun that police later seized.

Because no search or seizure occurs when police take hold of an abandoned item, the validity of the arrest is irrelevant.

Holding

The evidence here was obtained prior to and independent of defendant’s arrest, and as such, the arguments of counsel as to the legality of the arrest merit no further consideration. See Bridges, 123 Ill. App. 2d at 67. Accordingly, the trial court’s conclusion that the gun was the “fruit of the poisonous tree” was demonstrably incorrect. See Johnson, 237 Ill. 2d at 92 (in order for evidence obtained from an illegal arrest to be excluded, there must be some causal nexus between the illegal police activity and the disputed evidence).

Regardless, where the offense can be said to have been committed in the presence of an officer, it has generally been held that the officer may enter the premises without a warrant for the purpose of making a warrantless arrest. People v. Eichelberger, 91 Ill. 2d 359, 369 (1982). [This may not be good law anymore.]

Defendant’s Expectation Of Privacy In The Apartment Unit

Even assuming police conducted a search or seizure in violation of defendant’s fourth amendment rights, defendant would fare no better because he failed to establish a reasonable expectation of privacy in the actual apartment unit and, thus, in the building itself.

The fourth amendment’s constitutional safeguards are personal protections that may not be vicariously asserted and, thus, not every aggrieved defendant can seek to exclude evidence allegedly obtained in violation of the fourth amendment. People v. Ervin, 269 Ill. App. 3d 141, 146 (1994). In Ervin, for example, this court held that the defendant’s weekly presence as a guest in his ex-wife’s home was insufficient to establish a reasonable expectation of privacy, where he did not reside there, was not even a daily visitor, did not store clothing there, and did not spend nights there.

This was in spite of him listing her address on his driver’s license and other identification. See also People v. Parker, 312 Ill. App. 3d 607, 613 (2000) (noting, in Illinois, the storage of personal effects and other indicia of residence demonstrate an expectation of privacy in non-overnight guests); Williams, 186 Ill. App. 3d at 471 (concluding the defendant had no reasonable expectation of privacy in his girlfriend’s apartment where he did not live there, spent only one night a week there, did not take meals or keep clothes there, and had his mailing address elsewhere).

The evidence in this case established defendant’s presence in and access to the apartment unit, but it did not establish whether the apartment was itself locked before he entered, how often he was in the apartment, whether he planned to stay there for more than a brief period of time, or whether he kept any possessions there. The evidence therefore was insufficient to demonstrate he had a reasonable expectation of privacy in the actual apartment unit and in the apartment building itself.

Final Holding

Based on the foregoing, defendant abandoned his handgun without implicating a fourth amendment search or seizure. Alternatively, police acquired probable cause to sustain defendant’s arrest in the apartment unit after observing him hand off the gun and flee.

For the reasons stated, we reverse the judgment of the circuit court granting defendant’s motion to quash his arrest and suppress evidence. We remand the case for further proceedings consistent with this order.

People v. Encalado, 2017 IL App (1st) 142548 (February). Episode 314 (Duration 10:18)

Trial judge did not allow the defendant to ask the jury if they could remain impartial not withstanding the fact that likes to pay for sex. 

Facts

Defendant was found guilty of a brutal sex assault.

The victim testified she got her into his car on a rouse and then punched her in the face and put her clothes over her face and raped her.

Other Crimes (not an issue)

Other crimes evidence was admitted.

The victim in the older case said essentially the same thing.

The defendant offered her a ride. When she got in the care he punched her in the face and put her clothes over her face then raped her.

She also had some items stolen.

Defendant's Story

Defendant’s defense in both situations was that they were prostitutes who got mad at him after he took back his money.

He asked the court to question the venire as to whether they could evaluate the evidence of assault without bias if they knew he had narcotics with him at the time of the alleged offenses. He testified he offered to pay the women with money and drugs.

Wanted This Question

He also asked the court to say to the venire, “you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”  

"Hell No" Said Judge

The court refused to ask the venire any questions relating to drugs or prostitution.

Judicial Discretion

Our supreme court, in People v. Strain, 194 Ill. 2d 467 (2000), articulated the guiding principles for appellate review of questions asked on voir dire:

The trial court is given the primary responsibility of conducting the voir dire examination, and the extent and scope of the examination rests within its discretion.

However, the trial court must exercise its discretion in a manner consistent with the purpose of voir dire, which is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.

Unbiased Jurors

The jurors must harbor no bias or prejudice which would prevent them from returning a verdict according to the law and evidence.

Thus, a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.

Shield Not A Sword

However, the trial court should not permit the parties to use voir dire to indoctrinate the jurors or to ascertain prospective jurors’ opinions with respect to evidence to be presented at trial.

For example, Strain was a gang case.

He was worried about gang membership bias.

Defendant had no right to indoctrinate the jury or ascertain their attitudes towards his defense, so he could not ask whether the venire members could weigh impartially evidence that he robbed prostitutes.

Different Quetion

However, Encalado did not request that question. Instead, he asked the court to say to the venire,

“you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”

Sex Issues Are Goofy

The court noted that some sexual behaviors can evoke from many venire members strong responses that prevent the venire members from assessing evidence without bias.

Courts have noted potential juror bias against persons who exchange sex for money, homosexuals, people who perform in pornography, or pose nude for photos, and persons engaged in sexually immoral conduct.

The court said that jurors may hold similar biases against customers of women who exchange sex for money.

Analysis

The court held that defendant requested an appropriate question during voir dire to help him determine whether the potential jurors could weigh the evidence against him, without a predisposition to find him guilty of criminal sexual assault because he patronized prostitutes.

The trial court’s voir dire questions failed to reveal whether any members of the venire harbored a bias against persons who participate in prostitution, and therefore Encalado could not ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently.

Holding

The judge chose the course that gave the parties no opportunity to discover whether any members of the venire could weigh the evidence impartially once Encalado testified.

The judge’s choice led to a high likelihood that some persons serving on the jury would react with strong disgust and antipathy toward Encalado when he testified that he patronized prostitutes.

Sure, voir dire is not perfect.

Sometimes biased people make it on a jury.

Nonetheless, questioning on voir dire provides a means for the parties to attempt to discover biases that could affect the parties’ right to a fair trial. The procedure used by the trial court here, and defended by the dissent, removed the possibility of discovering whether a venire member held a widespread bias that would affect his or her ability to weigh the evidence impartially.

Reversed and remanded.

Dissent

See the dissent that this case completely undercuts the purpose and the rationale behind the rape shield law.

The dissent said this was nothing but a transparent ploy, and it was properly rejected by the trial court.

People v. Grant, 2017 IL App (1st) 142956 (February). Episode 313 (Duration 3:49)

Defendant shot himself in an empty apartment, reckless discharge?

Facts

Defendant shot himself in the hand.

He told the cops it happened when he was trying to clear it.

The gun belongs to his sister’s boyfriend who also lived there.

Reckless Discharge

"A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a).

Defendant conceded the issue that he acted reckless in discharging the gun.

Issue

He took issue with the second prong, that the State failed to satisfy the second element because there is no evidence that his reckless conduct endangered the bodily safety of "an individual."

More specifically, he maintains that the term "an individual," as used in the statute, refers to another person or others and that, bodily injury to himself does not satisfy the second element of the offense.

Thus, the defendant asserts that the evidence presented at trial did not demonstrate beyond a reasonable doubt that his reckless conduct endangered "an individual" since the State presented no evidence that another person or others were in the vicinity of the discharge.

Analysis

When it comes to reckless conduct the case law is clear that the General Assembly did not intend to punish, through the vehicle of the reckless conduct statute, behavior that only harms the person who is reckless.

It is much more likely or reasonable, as the defendant surmises, that the legislature decided that the injury the reckless conduct inflicts on the person who acts in a reckless manner is sufficient punishment and that it was unwise or unnecessary to subject that person to an additional, criminal penalty.

Absurd Results

The State's broad reading of the statute, on the other hand, has the potential to lead to absurdity, and is inconsistent with the language of the statute itself, the intent of the legislature in enacting the law, and Illinois case authority.

Holding

Here too, the defendant’s interpretation offers a reasonable and just result in which a defendant may only be found guilty of reckless discharge of a firearm where he endangers the bodily safety of another person or others.

 The court held that our legislature intended the term "an individual" to mean someone other than the "person" who is charged with the offense of reckless discharge of a firearm.

In this case, there was no one else in the apartment at the time nor is there any evidence any other person was in the building. There is no evidence that another person or others were in the vicinity of the discharge.

The conviction for reckless discharge was reversed.

See Also

Episodes 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)

People v. Williams, 2017 IL App (3d) 150879 (February). Episode 312 (Duration 10:26)

Off duty officer outside his jurisdiction stops defendant for swerving; this leads to a DUI arrest.

Facts

Off duty officer is on on his way home after a shift.

He is in an unmarked squad car equipped with a radar gun. He is still in his police uniform. He is driving in another county when he sees defendant driving in the opposite lane towards him.

Defendant is going 60 in a 25 and swerves into the officer’s lane almost striking the off duty officer’s car.

The off duty officer uses his personal cell to call 911 and to get an officer from the jurisdiction out to the scene.

The off duty officer follows defendant to a driveway where he engages him in conversation. He takes his DL and tells him to wait for the Lockport police officer to get there.

When Lockport PD gets there defendant fails the FSTs and he is arrested for DUI.

More Details

The record reveals defendant voluntarily stopped his vehicle once he arrived at the driveway of a friend’s house.

The off-duty Palos Hills police officer did not activate his lights to effectuate a traffic stop at any point in this process.

Instead, defendant voluntarily parked and exited his vehicle without any directive from the off-duty officer.

Defendant was on foot when the off-duty Palos Hills police officer approached defendant and struck up a conversation.

Defendant voluntarily stopped walking in order to speak to the off-duty Palos Hills police officer.

During this conversation, the off-duty Palos Hills police officer asked if defendant had been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the officer in the driveway until the Lockport police department could reach that location.

Shortly thereafter, the Lockport police officer arrived and spoke to both men.

The off-duty Palos Hills police officer spoke to the Lockport police officer about the erratic driving and improper lane use he witnessed on the night of the incident.

Trial Court

The trial court noted it was undisputed that the Palos Hills police officer was off duty and outside of his jurisdiction when the officer first observed defendant’s vehicle traveling towards him on the roadway.

The court expressed doubts about “the truthfulness and accuracy of the officer’s testimony as it relates to the series and sequence of the officer’s observations.

The court’s findings implied that the court believed the off-duty Palos Hills police officer first used the radar gun to measure defendant’s speed before observing defendant commit the other offenses.

The trial judge stated that when making an extraterritorial arrest, an off-duty police officer may not use powers of his office that are unavailable to a private citizen to obtain evidence. The trial court emphasized that it believed the evidence obtained from the radar gun was the true reason for the stop, not the improper lane usage described by the off-duty police officer. The trial judge was concerned that the Lockport police officer did not charge defendant with an improper lane usage violation.

For these reasons, the trial court judge questioned the off-duty police officer’s “conclusion that the stop was predicated on the lane violation” independent from information gathered by the use of the radar gun.

Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and suppressed all evidence obtained as a result of the first unlawful stop.

Citizen's Arrest

At common law, a police officer cannot lawfully arrest a suspect outside of the jurisdiction that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing from that jurisdiction.

An exception to the common law rule arose from section 107-3 of the Code of Criminal Procedure of 1963 (the Code), which allows a private person to arrest another person when “he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.” 725 ILCS 5/107-3.

Under section 107-3, a police officer acting outside of his jurisdiction retains all of the rights of an ordinary citizen to effectuate a citizen’s arrest.

However, an extraterritorial arrest by an officer acting in the capacity of a private citizen will not be upheld by a court pursuant to section 107-3 where the officer, acting as a citizen, relies on information gathered by using powers of his office to create reasonable grounds for the arrest.

What About A Radar Gun?

Powers of office have been construed to include the use of a radar gun because this device is generally unavailable to private citizens. See People v. Lahr, 147 Ill. 2d 379, 383 (1992).

Analysis

Here, an off-duty police officer, acting outside his jurisdiction, stopped defendant for improper lane usage. Improper lane use is an “offense other than an ordinance violation” for the purposes of creating the authority to effectuate a citizen’s arrest under section 107-3 of the Code. See People v. Kleutgen, 359 Ill. App. 3d 275, 279 (2005).

However, the Lockport police officer conducted his own investigation of the DUI offense after arriving on scene.

It was the Lockport police officer that elected to arrest defendant for DUI and speeding, but did not issue a citation for improper lane usage.

The case law provides that the Lockport police officer was not required to charge defendant with all minor violations witnessed by the off-duty Palos Hills police officer because after the stop, the Lockport police officer became aware of a more serious violation. See People v. Goestenkors, 278 Ill. App. 3d 144, 149 (1996).

The reviewing court concluded that the Lockport police officer’s decision not to charge defendant with improper lane usage is not outcome determinative. In spite of these unusual events, the appellate courts said the trial court’s ruling misapplies existing case law.

In People v. Gutt, 267 Ill. App. 3d 95, 99 (1994), the court upheld an extraterritorial arrest, similar to the case at bar. In that case, the off-duty officer first used a radar gun to obtain evidence but later observed the defendant fail to use his turn signal.

Holding

The same circumstances exist here and support the lawfulness of defendant’s arrest for improper lane usage before the Lockport police officer made it to the scene.

The holding is that an off-duty police officer’s use of a radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic offenses unrelated to excessive speed, will not taint subsequently developed probable cause to conduct an arrest by the officer acting in his civilian capacity.

Reversed and remanded for further proceedings.

People v. Holt, 2019 IL App (3d) 160504 (March).

The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.

Facts

Women sees two men grab a bag from behind a vending machine and enter the Walmart in Rock Falls.

She saw them reach behind the soda machines, pull out backpacks, take items out of their clothes, and place the items in the backpacks. She testified that she observed Holt take “something long and orange, like a fabric of some sort” out of his pants and place it in a red and black backpack.

Peppers further stated that the two males walked back into the vestibule by the Coinstar machine, but she could not see what they were doing.

Then, the males walked back into the store.

She stated that the males carried the backpacks into the vestibule by the Coinstar machine, but when they reentered the store, they were no longer carrying the backpacks.

They were arrested when they came out.

Police Get Involved

A backpack sitting on top of a Coinstar machine had contained three packs of socks, a dress, a pair of pants, and a two-piece shirt set.

An officer also noticed a large bulge in the front of Holt’s pants.

When asked about it, Holt stated that he had clothing in his pants. Because Holt had been arrested and Mirandized by that point, the officer performed a pat-down of Holt, felt soft material in his pants, and removed the items, which were three packs of socks and a dress. Holt did not offer any explanation as to why the items were in his pants; he “just kept denying it even though that is not how he carries things around.”

Guilty of Burglary

In this case, Holt was charged with entering Walmart without authority. The jury returned guilty verdicts on burglary and retail theft.

Holt was sentenced as a Class X offender on his burglary conviction. He received eight years of imprisonment for burglary, to be served concurrent to a three-year sentence for retail theft.

The Burglary Statute

Notably, there are two ways in which one can commit the offense of burglary:

by either knowingly entering or without authority remaining within “a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).

See Also

• Episode 155 - People v. Bradford, 2016 IL 118674 (March) (this is also a burglary to a Walmart, except he was charged differently)
• Episode 456 - People v. Johnson, 2018 IL App (3d) 150352 (January) (this is the codefendant in this case, 3rd district expands the Bradford rule to the second more common type of burglary)
• Episode 472 - People v. Burlington, 2018 IL App (4th) 150642 (March) (4th district declines to follow the 3rd and says Bradford is limited to the type of burglary charged in that case)
• Episode 505 - People v. Moore, 2018 IL App (2d) 160277 (June) (3rd joins the 4th in saying Bradford is limited to the charges in that case)

Quick Summary

Despite Bradford addressing only “burglary by remaining” cases, the Johnson court found its rationale applicable to “burglary by entering” cases: “Under either manifestation of burglary, the offender must lack ‘authority.’ If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.” Id. ¶ 33.

Accordingly, the Johnson court extended Bradford to “burglary by entering” cases and held that Johnson never exceeded the authority granted to him to enter Walmart. 

Holding

In this case, it was clear that Holt entered Walmart, a business open to the public, during normal business hours. Applying Johnson to this case, we hold as a matter of law that Holt did not enter Walmart without authority. Accordingly, we reverse his burglary conviction but affirm his retail theft conviction.

The Dissent Says...

I find that Johnson was wrongly decided and that the majority erred in relying on it.

In reaching our decision in Johnson, we relied on the supreme court’s decision in People v. Bradford, 2016 IL 118674. In Bradford, the supreme court ruled that a defendant commits “burglary by remaining” in a public place only if he (1) hides and waits for the building to close, (2) enters unauthorized areas of the building, or (3) remains on the premises after his authority has been revoked.

A defendant who enters a store during regular business hours, never enters areas of the store that are off-limits to the public, shoplifts items, and leaves while the store is open is not guilty of “burglary by remaining.” Id. ¶ 32.

In Johnson, we found that “Bradford changes the law and effectively overrules the law” set forth in “a long line of cases” holding that “one who intends to commit retail theft lacks authority to enter a store.” Johnson, 2018 IL App (3d) 150352, ¶ 28. I disagree.

The supreme court in Bradford made clear that its holding applied only to “burglary by remaining” cases.

First, the court repeatedly used the phrase “burglary by remaining” in its legal conclusions. See Bradford, 2016 IL 118674, ¶ 31. Additionally, the court in Bradford discussed Weaver and cited with approval its holding that “evidence that a defendant enters a place of business in order to commit a theft is sufficient to satisfy the ‘without authority’ element of burglary by entering.” Bradford, 2016 IL 118674, ¶ 23 (citing Weaver, 41 Ill. 2d at 439).

I find nothing in the supreme court’s decision in Bradford suggesting that it changed the law with respect to “burglary by entering” cases, like Johnson or this case. I agree that Bradford did not overrule Weaver, a case that has been repeatedly and universally followed in this state for over 50 years.

I find that Weaver controls this case and does not support reversal of defendant’s burglary conviction. 

People v. Campos, 2019 IL App (1st) 152613 (January).

In a sex case you have to be careful with exactly what the allegations are and how it comes out at trial.

One-Act One Crime

The one-act, one-crime rule prohibits multiple convictions carved from the same physical act. See People v. Almond, 2015 IL 113817, ¶ 47; People v. King, 66 Ill. 2d 551, 566 (1977).

To determine whether simultaneous convictions violate the one-act, one-crime rule, this court performs a two-step analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010).

First, we must determine if the offenses stem from multiple acts or a single act. Id. “Multiple convictions are improper if they are based on precisely the same physical act.” Id. An “act” is defined as any overt or outward manifestation that will support a different offense. King, 66 Ill. 2d at 566.

Second, if we determine that the offenses stem from separate acts, we move on to the second step of the analysis and determine whether any of the offenses are lesser-included offenses. Miller, 238 Ill. 2d at 165. “If an offense is a lesser-included offense, multiple convictions are improper.”

Charging Matters

In order for multiple convictions to stand, a charging instrument must indicate that the State intended to treat defendant’s conduct as multiple acts. People v. Crespo, 203 Ill. 2d 335, 342-45 (2001) (emphasizing that each stab wound made by defendant could have supported multiple convictions, but the indictment showed that the State intended to treat defendant’s conduct as a single attack because the State did not apportion the crimes among the stab wounds).

The record shows that the State charged defendant with multiple counts of aggravated criminal sexual abuse based on different physical acts that occurred during various time frames. Defendant was found guilty on eight of those counts (counts VI, VII, VIII, IX, XIV, XX, XXI, and XXII).

The Charges

Counts VI and XIV concern defendant’s touching of L.S.’s penis.

Count VI covers the time frame between August 26, 2010, and August 26, 2013. Count XIV covers the time frame between November 24, 2009, and August 26, 2013.

Counts VII, VIII, IX, XX, XXI, and XXII concern defendant’s touching of M.S.’s breasts and vagina with his hand and mouth. Counts VII, XIII, and IX cover the time frame between August 26, 2010, and August 26, 2013. Counts XX, XXI, and XXII cover the same conduct as counts VII, VIII, and IX, respectively, but concern the time frame between February 3, 2007, and August 25, 2010.

Issue

In this court, defendant argues that count VI should be vacated because it is duplicative of count XIV in that it alleges the same conduct and covers virtually the same time frame. He further argues that counts XX, XXI, and XXII are duplicative of counts VII, VIII, and IX, and should be vacated because the State’s evidence did not properly apportion his conduct to the different time periods covered by the charges.

Counts VI & XIV Distinct Acts

We begin our analysis by considering the evidence presented at trial to determine whether defendant’s convictions were based on the same physical act and occurred in the same period of time.

With respect to counts VI and XIV, we find that the trial court did not err in entering convictions on both counts of aggravated criminal sexual assault because the State’s evidence described separate acts, which occurred during the time frames specified in the charges. Stated differently, counts VI and XIV do not violate the one-act, one-crime rule because the State’s evidence showed two separate acts for which defendant was convicted.

Count VI alleged that defendant touched L.S.’s penis between the time frame of August 26, 2010, and August 26, 2013. During this time frame, L.S. was between 14 years old and 18 years old.

Count XIV alleged that defendant touched L.S.’s penis between the time frame of November 24, 2009, and August 26, 2013. During this time frame, L.S. was also between 14 years old and 18 years old.

At trial, the State’s witnesses testified that defendant touched L.S.’s penis on two separate occasions. There is no doubt that these are two separate and distinct acts, which occurred during the time frames specified in the charges. As such, because L.R. and M.S. both testified to different instances in which defendant touched L.S.’s penis, the convictions do not violate the one-act, one-crime rule. See also People v. Strawbridge, 404 Ill. App. 3d 460, 462-63 (2010).

Here, the trial court heard the testimony of M.S. and L.R., which described two separate acts that occurred at different points in time. Given this distinction, we cannot conclude that the trial court erred when it convicted defendant on counts VI and XIV.

Counts VIII & XXI Distinct Acts

Next, counts VIII and XXI are not duplicative because they are based on different acts that occurred during different periods of time.

Count VIII alleged that defendant touched M.S.’s vagina with his hand during the time frame between August 26, 2010, and August 26, 2013. During this time frame, M.S. was between 13 years old and 16 years old.

Count XXI alleged that defendant touched M.S.’s vagina with his hand during the time frame between February 3, 2007, and August 25, 2010. During this time frame, M.S. was between 10 years old and 13 years old. M.S. testified that, when she was 10 years old, defendant touched her vagina with his hand while she stood in a doorway in her underwear. This evidence supports defendant’s conviction on count XXI.

Likewise, M.S. testified to multiple instances of defendant touching her vagina with his hand when she was 14 years old and 16 years old. Any of these instances supports defendant’s conviction on count VIII.

Because the evidence shows that defendant was convicted based on separate physical acts that occurred during the specified time frames, these two convictions do not violate the one-act, one-crime rule.

Some Counts Must Be Vacated

However, we find that the trial court erred in convicting defendant of counts XX and XXII because the State’s evidence failed to establish that he committed separate acts during the specified time frame.

Counts XX and XXII alleged that defendant touched M.S.’s breasts with his hand or mouth, respectively, between February 3, 2007, and August 25, 2010. This time frame covered the period when M.S. was between the ages of 10 years old and 13 years old. The testimony at trial, however, only described instances that occurred when M.S. was 14 years old or older, which is the time period covered by counts VII and IX.

Specifically, M.S. testified that defendant touched her breasts with his mouth when she was 14 years old. Likewise, L.R. testified that she saw defendant touch M.S.’s breasts with his hands when M.S. was 15 years old. While defendant admitted, in his statement, that he started touching M.S. when she was “much younger” than 16 years old, there is no specific evidence that he touched her breasts in any way when she was younger than 14 years old as alleged in counts XX and XXII.

Holding

Accordingly, we conclude that defendant’s convictions on counts XX and XXII must be vacated for violating the one-act, one-crime rule because they are based on the same physical acts charged in counts VII and IX.

In sum, we affirm defendant’s convictions on counts VI, VII, VIII, IX, XIV, and XXI, and vacate defendant’s convictions and sentences on counts XX and XXII.

People v. Lee, 2019 IL App (1st) 162563 (February). Episode 605 (Duration 5:29)

Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?

Gist

The State indicted defendant for the offense of defacing identification marks of a firearm and two counts of AUUW.

Facts

Police were undergoing drug surveillance when they spotted a suspicious car and van.

Upon further observation men were seen getting out of the vehicles and opened the trunk of the car. 2 men were seen putting guns in their waistband. When they saw the police they ran. They were arrested and defendant was seen tossing a black revolver.

The serial number was damaged as though a tool was taken to it to scratch it out.

Defacing Identification Marks

The Criminal Code of 2012 (Criminal Code) defines the offense of defacing identification marks of a firearm as follows:

“(a) Any person who shall knowingly or intentionally change, alter, remove or 1-16-2563 9 obliterate the name of the importer’s or manufacturer’s serial number of any firearm commits a Class 2 felony. (b) A person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”

720 ILCS 5/24-5.

The Jury Instruction

Defendant objected to the use of Illinois Pattern Jury Instructions, Criminal, No. 18.24 (3d ed. 1992), modified, arguing that the “knowing possession” must attach not only to the possession of the firearm, but also to the defacement of the firearm’s serial number.

The State argued it only had to prove defendant knowingly possessed a firearm that was defaced, and Illinois law did not require the State to also prove that defendant knew that the firearm was defaced.

Trial Court Instruction

The court found that under People v. Falco, 2014 IL App (1st) 111797, ¶ 18, and People v. Stanley, 397 Ill. App. 3d 598, 609 (2009), the statute was clear that the State only had to prove that defendant knowingly possessed the firearm and that the firearm’s serial number was altered, obliterated, or removed.

The Jury Note

The jury sent another note asking,

“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”

The court stated to the parties that “Under the Falco case and the Stanley case, the State must prove the knowing possession of the firearm of the defendant but need not prove the defendant’s knowledge of the character of the firearm.”

Defendant renewed his objection, arguing that knowledge of the defacement was an element of the statute despite the case law and that any other reading meant that the offense de facto became a strict liability offense.

The State argued that the court should provide a direct answer to the question, and defendant argued that the jury has the law under their instructions and that no further instructions were necessary.

The trial court found that the note presented a question of law that the court was obligated to answer. The court overruled defendant’s objection and sent a note back to the jury, stating “no, the State must prove beyond a reasonable doubt the knowing possession of the firearm. Proof of knowledge of the defacement is not required.”

Found Guilty

The next morning the jury began its deliberations at 10:15 a.m. At 1:25 p.m., the jury returned its verdict, finding defendant guilty of AUUW, based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq.); guilty of aggravated unlawful use of a weapon, based on not having a currently valid firearm owner’s identification card; and guilty of defacing identification marks of a firearm.

The court sentenced defendant to 30 days in jail, with credit for time defendant already served; 100 hours of community service; and 24 months’ probation.

Issue

Defendant argues the State failed to prove him guilty beyond a reasonable doubt because the State had to prove knowledge of the defacement and not simply knowledge of possession of a firearm with defaced identification marks, and the State did not present evidence proving beyond a reasonable doubt that defendant knew the identification markings were defaced on the firearm he possessed.

Defendant claims that his conviction should be reversed.

People v. Stanley

In that case we found that under section 24-5(b) of the Criminal Code, the State is only required to prove beyond a reasonable doubt that defendant knowingly possessed a firearm and that the firearm’s serial number was defaced.

“The State, however, need not prove knowledge of the character of the firearm. Though the defacement unmistakably bears upon the commission of the offense, it is not an element of the offense. We find support for this interpretation in the Committee Comments to section 4-9, explaining that: ‘[A] mental-state requirement should be implied as an application of the general rule that an offense consists of an act accompanied by a culpable mental state, as expressed in 4-3.’” People v. Stanley, 397 Ill. App. 3d 598, 609 (2009).

The Stanley court found that possession of the firearm was an element of the offense, but not knowledge of the defaced serial number, and that the mens rea applied to the possession not the character of the weapon. Analysis

The knowledge required applies only to the possessory component of the offense.

Our interpretation is in conformance with the legislature’s recognition of the dangerousness posed by defaced weapons. Thus, we perceive that the mere possession of such weapons is the evil sought to be remedied by this offense to, inter alia, deter the possession of altered weapons. This court has had a number of opportunities to revisit our holding in Stanley, and we have repeatedly reaffirmed Stanley and its reasoning.

Again, we note that had the legislature intended to impose such a knowledge requirement, it could easily have done so by amending section 18-4 to specify a mental state for the circumstances elevating the offense to its aggravated form. This court, and the legislature, has had ample opportunity to consider the issue of knowledge attaching to the defacement of the firearm as well as its possession.

This court has consistently held that under section 24-5(b) the State need only prove knowledge of possession of a gun that has defaced identification marks, and the legislature has not acted to change the law.

The State needed to prove beyond a reasonable doubt only that defendant knowingly possessed a firearm and that the firearm’s identification number was defaced. Holding

We find the State was not required to prove that defendant knew the firearm he possessed was defaced, and the jury instruction did not misstate the law.

See Also

Episode 009 – People v. Falco, 2014 IL App (1st) 111797 (August) (jury instructions said nothing at all about the mental state). 

The Trial Court’s Answer to a Question From the Jury

Recall that during deliberations the jury asked:

“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”

Defendant argues the circumstances were not appropriate for the trial court to answer the jury’s question because the giving of an answer would cause, and did cause, the court to express an opinion that impermissibly directed a verdict in favor of the State.

The General Jury Question Rule

“The general rule when a trial court is faced with a question from the jury is that the court has a duty to provide instruction to the jury when the jury has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. Nevertheless, a trial court may exercise its discretion to refrain from answering a jury question under appropriate circumstances. Appropriate circumstances include when the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury’s inquiry involves a question of fact, or where the giving of an answer would cause the court to express an opinion that would likely direct a verdict one way or another. Further, the court should not submit new charges or new theories to the jury after the jury commences its deliberations.”

People v. Millsap, 189 Ill. 2d 155, 160-61 (2000).

Did The Court Have A Duty To Answer?

In this case the issue of whether the trial court should have responded to the jury’s question turns on whether the court had a duty to answer. See People v. Gray, 346 Ill. App. 3d 989, 992 (2004) (“Generally, a trial court has a duty to answer when a jury raises (1) an explicit question (2) on a point of law (3) about which the jury indicates doubt or confusion.”).

The jury’s question here was explicit; it was a question of law because it dealt with the mens rea requirement and the construction of its jury instruction (Leach, 2011 IL App (1st) 090339, ¶ 17 (“the construction of a jury instruction is a question of law”)); and the jury expressed confusion over what the State was required to prove defendant had knowledge of.

We cannot say that the trial court’s decision to answer the jury’s question was arbitrary or unreasonable, or that no reasonable court would take the view adopted by the trial court here. Therefore, the trial court did not abuse its discretion deciding to answer the jury’s question. The court’s answer to the jury’s question did not express an opinion on an issue of fact. The court’s answer simply stated that the knowledge requirement applied to the possession of the weapon and not to the defacement of the weapon’s serial number.

The court did not abuse its discretion by choosing to answer the jury’s question, and the court’s answer did not misstate the law.

Therefore, the trial court did not err in providing its answer to the jury’s question.

OK. What About This Bullet Testimony?

“[O]therwise relevant evidence is inadmissible if its probative value is outweighed by such dangers as unfair prejudice, jury confusion, or delay.” People v. Walston, 386 Ill. App. 3d 598, 610 (2008). “Evidence is considered ‘relevant’ if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.” People v. Illgen, 145 Ill. 2d 353, 365-66 (1991). Evidence is admissible if it is directly probative of an element of the offense. See People v. Hester, 271 Ill. App. 3d 954, 958 (1995) (“defendant’s prior conviction was properly admitted as evidence directly probative of that element of the offense, similar to the admission of evidence relevant to any other element of an offense”).

Evidence is inadmissible, and its admission may be reversible error, if it has little to no probative value and its only purpose is to stir the emotions of the jury. See People v. Orange, 168 Ill. 2d 138, 161 (1995); People v. Iniguez, 361 Ill. App. 3d 807, 817 (2005). Defendant was charged with, inter alia, aggravated unlawful use of a weapon based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. 720 ILCS 5/24-1.6(a)(3)(A-5).

Officer Serio testified that he examined both the gun and the bullets.

The Hollow Points

He said there were two types of bullets, full metal jacket and hollow point, and that they were live rounds. This testimony was proper because it relates to an element of one of the offenses charged. However, the State proceeded to elicit further testimony about the dangerous character of the hollow point bullets.

The character of the bullets is not an element of any of the offenses the State charged defendant with violating. There is no relationship between the charges against defendant and Officer Serio’s testimony that hollow point bullets are designed to do more damage to their target by opening up like a flower and are different from full metal jacket bullets because a full metal jacket bullet will maintain its shape when fired.

This testimony provided no probative value while being highly prejudicial.

The State introduced no facts to show defendant knew two of the bullets in the gun at issue were hollow point bullets or that defendant knew the dangerous nature of these bullets.

Thus, the State’s motive argument only serves to confirm the highly prejudicial and inflammatory nature of the evidence concerning the dangerousness of hollow point bullets. The evidence elicited by the State regarding the dangerous nature of two of the bullets recovered from the gun has no relevance to any of the charges against defendant, and with no probative value, this evidence only prejudices, confuses, and misleads the jury, thereby constituting clear error.

A commonsense assessment of the evidence reveals that it was closely balanced.

We also find the testimony describing the dangerous nature of the bullets found in the gun as designed to inflict greater damage to their target could have affected the weight the jury attributed to defendant’s testimony and caused it to render a verdict on an improper basis. Accordingly, we find the evidence is so closely balanced that the error alone threatened to tip the scales of justice against defendant.

We find defendant has shown clear error in a closely balanced case, and he is therefore entitled to relief under the first prong of the plain-error doctrine.

Holding

Therefore, defendant’s convictions for defacing identification markings of a firearm and for two counts of AUUW are reversed, and the cause remanded for a new trial.