People v. Martinez

2024 IL App (1st) 221594-U

Opinion

2024 IL App (1st) 221594-U No. 1-22-1594 Second Division June 28, 2024

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 14-CR-1656 v. ) ) DANIEL MARTINEZ, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Peggy Chiampas, ) Judges, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

¶1 Held: The trial court erred in denying defendant-appellant’s motion to suppress evidence where the doctrine of hot pursuit could not justify law enforcement’s pursuit and warrantless arrest.

¶2 In December 2013, defendant-appellant, Daniel Martinez, was arrested in Chicago, Illinois,

after Chicago Police officers initially observed him holding a Corona beer bottle on the sidewalk

outside of his residence, which is a jailable misdemeanor offense in Chicago. After following him No. 1-22-1594

onto the property, officers discovered that he was carrying a firearm, and later determined that he

was 21 years old and did not have a valid Firearm Owner’s Identification (FOID) Card pursuant

to the Firearm Owners Identification Card Act (430 ILCS 65/1) (West 2012)). Defendant was

subsequently charged by information with four counts of a Class 4 felony, unlawful firearm

possession under Illinois’ aggravated unlawful use of a weapon (AUUW) statute pursuant to the

Code of Criminal Procedure of 1963, 720 ILCS 5/24-1.6 (West 2012). Following the denial of his

motion to quash and suppress evidence, defendant proceeded to a bench trial in April 2017 and

was found guilty of two counts of aggravated unlawful use of a weapon, which were merged by

the trial court. Defendant subsequently filed a posttrial motion, arguing that the court erred in

denying his motion to suppress, and that he had not been proven by reasonable doubt at trial and

was entitled to a new trial.

¶3 Due to other pending separate charges against him, defendant’s posttrial motion and

sentencing hearing did not occur until April 2019, almost two years after his trial. Ultimately,

defendant was sentenced to two years in the Illinois Department of Corrections, and credited one

year for time already served, with an additional year of mandatory supervised release. Defendant’s

appeal to this court was dismissed as premature, where the record did not show that the trial court

had ruled on his timely posttrial motion. 1 On remand, a new trial judge denied that motion.

¶4 Defendant now brings this second appeal, arguing that: (1) his warrantless arrest at his

home lacked sufficient probable cause; and (2) even assuming his arrest was lawful, Illinois’

prohibitions on handgun possession by those under the age of 21 pursuant to the AUUW statute

and the FOID statute are unconstitutional pursuant to the recently issued United States Supreme

1 See People v. Martinez, No. 1-19-1083 (unpublished order pursuant to Illinois Supreme Court Rule 23).

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Court case of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). For the reasons

that follow, we reverse defendant’s conviction.

¶5 I. BACKGROUND

¶6 On December 20, 2013, defendant was arrested by four plain-clothed police officers at his

home at 1832 West 22nd Place in Chicago, Illinois, after officers, travelling in an unmarked police

vehicle, observed him with an open Corona bottle on a public sidewalk. After officers announced

their office, defendant retreated behind the gated fence separating his residence from the sidewalk.

Officers entered the property by opening the gate and following him up the front steps. Upon a

search of his person, a handgun was recovered from his jacket pocket.

¶7 On January 21, 2014, defendant was charged with four counts of unlawful possession of a

firearm. Count I alleged that defendant had possessed a firearm at his home without a valid FOID

card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2012)). Count II alleged that he had possessed a

firearm under the age of 21 years old (720 ILCS 5/24-1.6(a)(1), (3)(I) (West 2012)). Counts III

and IV mirrored counts I and II, with the additional caveat that defendant’s firearm possession had

also occurred on public land (720 ILCS 5/24-1.6(a)(2), (3)(C), 24-1.6(a)(2), (3)(I) (West 2012)).

The State dismissed counts III and IV by nolle prosequi and proceeded to trial on counts I and II.

¶8 Prior to trial, defendant filed a motion to quash and suppress any physical evidence or

statements obtained after his arrest. Therein, defendant argued that his arrest was made without a

valid search or arrest warrant, and that his arrest was unjustified under either a probable cause or

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reasonable suspicion standard. We recite the relevant testimony adduced from both the suppression

hearing and at trial below. 2

¶9 A. Suppression Hearing

¶ 10 1. Kendall Hanen

¶ 11 On direct examination by defense counsel, Hanen testified that she was the defendant’s

ex-girlfriend and that the couple had broken up about two years prior. She was currently twenty

years old and lived in Lombard, Illinois. Hanen was a student at Chamberlain College of Nursing,

and also worked at Lexington Healthcare as a “PCT.” On the day of defendant’s arrest, Hanen and

defendant had still been in a relationship and she had observed his encounter with police. Hanen

was shown a photograph of defendant’s home, located at 1832 West 22nd Place, and confirmed it

as an accurate depiction of his home during daytime hours.

¶ 12 On December 20, 2013, at or around 11:45 p.m., Hanen and defendant had been outside

the home with Elicio Solano 3 and Marco. Hanen did not know Marco’s last name. Hanen initially

testified that all four had been sitting on the stairs of the front porch, but later testified that Marco

had been sitting a “stair above” them while Solano stood outside the gate surrounding the property.

Solano had arrived at the home about 30 minutes prior to the arrest, and Hanen did not recall if he

had been drinking alcohol. Hanen denied that either Solano or defendant had been holding any

items in their hands, and further denied that defendant had any visible “bulges,” “protrusions,” or

a gun sticking out of his waistband. However, he had been wearing a large winter jacket.

2 Defendant’s suppression hearing, trial, and sentencing was presided over by the Honorable Maura Slattery Boyle. Upon remand, his posttrial motions were heard and ruled upon by the Honorable Peggy Chiampas. 3 Solano’s first and last name is spelled differently throughout the report of proceedings. He was also referred to as a co-defendant by the parties in the report of proceedings, but we have no documentary confirmation of this.

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¶ 13 Hanen testified that an unmarked police car drove in front of the house, and that four

officers “immediately” exited the vehicle. She described the officers as wearing jeans, black shirts,

and vests. She was unsure of what kind of car they were driving, but knew it was a smaller sedan.

The four officers ran towards the gate, and Solano walked inside the property and attempted to

lock the gate. One officer ran towards the gate, put his hand inside of it, and opened it. The officers

then ran towards or up the stairs where the others were still seated. Initially, the officers did not

say much to Hanen, but “grabbed” the other three. Hanen further testified that one officer

immediately ran toward defendant and grabbed him from his position on the stairs, and then

brought him outside the gate to the sidewalk. Once the officer searched defendant, he found a gun

and recovered it from defendant’s pocket. Hanen stood up and moved towards the front door, and

an officer subsequently told her to “get out of the way” and then grabbed her.

¶ 14 On cross-examination by the State, Hanen testified as follows. She and defendant had dated

for about nine months. Hanen denied having any knowledge that defendant had a gun in his pocket.

When asked if any of the four had beers with them that night, she responded, “not that I remember,

no.” When asked if she had any difficulty recalling the events of that night, she responded, “no, I

wouldn’t say that,” and said she could remember “everything in detail.”

¶ 15 Hanen testified that, at the time of the arrest, it was about midnight and was cold outside.

The streets were lit and defendant’s home also had lights on in front of the property, so “everyone

could see each other.” Hanen reiterated that the four had been hanging out and talking amongst

themselves on the steps for about 30 minutes. However, she also testified that Solano had been

standing out in front of the property that night. Because the street had been well lit, Hanen had

also been able to see the police when they exited their vehicle, but did not recognize them as police

until they were in front of the home. She denied that the vehicle had been an unmarked Ford

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Explorer. When asked if she was “positive” that it had been a sedan, she responded, “I can’t think

of the exact name of the car, but I believe[d] it to be a Grand Victorian or something like that.”

¶ 16 Hanen denied that everyone had attempted to go inside the house once the police left their

vehicle, but then stated that Marco had attempted to go inside while defendant remained sitting.

Solano went inside the gate but did not go inside the property and tried to shut the gate door. Hanen

denied that defendant ever tried to move away or get up from his position on the stairs. She only

rose from her own position to remove herself from harm once officers began running up the stairs.

She had been able to observe the officer’s search of defendant, which included a search of

defendant’s right front jacket pocket, from which he recovered a handgun. She further testified

that, prior to the officer touching any part of defendant’s jacket from the outside, the officer

“immediately” opened the jacket to search inside the coat.

¶ 17 On redirect examination, Hanen reiterated that defendant had not left the property while

they had been together, and only did so when the police removed him from his position.

¶ 18 At the close of Hanen’s testimony, defendant motioned for a directed finding. The motion

was denied.

¶ 19 2. Officer Ricardo Gonzalez

¶ 20 Gonzalez testified on direct examination for the State. He had been an officer with the

Chicago Police Department (CPD) for 18 years. On the night of defendant’s arrest, he had been

assigned to the gang enforcement unit. Part of his assignment was to patrol the area around 1832

West 22nd Place. He and three other officers were patrolling the area in an unmarked Ford

Explorer, which was “police equipped” with lights and sirens. The car was not equipped with any

cameras or similar systems. Gonzalez sat in the front passenger seat and was not wearing a body

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camera. The car had been travelling westbound on 22nd Place off Wood Street at about 20 miles

per hour.

¶ 21 As they drove, an “individual” caught his eye, who Gonzalez identified in court as the

defendant. Defendant stood on the north side of the street, which would have been to the right of

Gonzalez’s view. The car had been about “two to three car lengths” away from defendant when

Gonzalez first viewed him. The car’s headlights were on, and the street was “artificially lit.” There

had also been cars parked on the north side of the street, but when asked if those vehicles had

potentially obstructed his view, Gonzalez responded that the “Ford Explorer s[at] up a little bit

higher than a regular squad car[,]” which allowed him to see through the gaps of the cars.

¶ 22 When asked what about defendant caught his eye, Gonzalez testified that defendant had

been out on the sidewalk “holding a Corona bottle in his right hand” and thus Gonzalez believed

that defendant had been committing the crime of drinking on the public way. Solano also caught

his eye. Gonzalez recognized Solano because he had an outstanding warrant for aggravated

unlawful possession of a weapon. Gonzalez testified that, prior to his shift that night, and as he did

on a daily basis, he had reviewed the outstanding warrant list at the police station,

¶ 23 Based on these observations, the car stopped and parked directly in front of a house at 1832

West 22d Place. Defendant stood about “one address over” in the westward direction from where

the car was parked. Gonzalez “jumped” out of the vehicle, announced his office, and told defendant

to “stop.” As Gonzalez exited the vehicle, defendant failed to adhere to Gonzalez’s demand and

began to walk behind the gate of the property. Solano also walked behind the gate, which bordered

the public sidewalk. Both Solano and defendant began to walk up the staircase on the property.

Gonzalez walked to the closed but unlocked gate, opened it, went inside the property, and grabbed

defendant by his right hand about three or four stairs up the front porch. Defendant was no longer

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holding the beer bottle, which Gonzalez believed he had either put down or “do[ne] something

with it,” as he had last seen defendant with the bottle when he walked behind the gate.

¶ 24 Once Gonzalez stopped defendant, he observed that defendant’s right arm was completely

covered inside of his left jacket pocket. After grabbing defendant’s right hand and wrist, Gonzalez

told him to bring his hand out slowly. Defendant initially did not comply and Gonzalez repeated

this command “more than once.” Eventually defendant complied after Gonzalez “forcefully”

grabbed defendant’s hand to remove it from the pocket. Gonzalez then used his own right hand to

recover a gun from the jacket pocket.

¶ 25 When asked why he had first searched defendant’s jacket pocket, Gonzalez responded that

it had been a “custodial search” and that there had been a reason as to why defendant had not

removed his hand from the pocket. When asked if Gonzalez had placed defendant under arrest at

that time, he responded “yes, for drinking on a public way,” which was a “citable offense” in

Chicago. When asked if defendant had received a citation or was arrested for that particular

offense, Gonzalez responded, “It’s an arrestable offense so we made an arrest.” Gonzalez did not

personally detain Solano. He further recalled that there had also been a “young lady” and another

“young gentleman” at the scene.

¶ 26 Upon cross-examination by defense counsel, Gonzalez testified as follows. On the night of

the arrest, he had been stationed in that area for about 10 years, which was known for “high gang

activity.” Gonzalez’s duties within the gang enforcement unit included searching for guns and

other criminal activity. When asked if he had been specifically looking for guns that night,

Gonzalez responded that, while on patrol, “usually we go where the gangs are.” On the night of

the arrest, he did not have any information regarding defendant or whether he possibly possessed

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a gun. However, he had been looking for someone that he knew had an active warrant that

“frequented the area.”

¶ 27 During his time in the unit, Gonzalez had used different police vehicles while on patrol.

Gonzalez admitted that his written police report did not indicate what vehicle the officers had

driven that night, but stated they had been assigned a Ford Explorer “for the whole time [he] was

there.” 4 However, he denied “always” using a Ford Explorer during that ten-year period because

the gang unit “moved around,” which was a “complicated scenario.”

¶ 28 On the night of the arrest, Gonzalez and his partners were in plain clothes. When the vehicle

stopped, it did so next to a parked car. When Gonzalez left the vehicle, Solano had been outside

the gate but had not been drinking. Gonzalez admitted that defendant did not run once Gonzalez

began approaching him. He further admitted that defendant had not been holding his waistband,

his pocket, or his side. Gonzalez also did not notice any bulges or protrusions from either

defendant’s waistband or his pockets.

¶ 29 Gonzalez testified that when he reached defendant, the two were standing directly in front

of each other on the porch, either on the third or fourth step. Gonzalez estimated that he asked

defendant three or four times to remove his hand. Gonzalez then placed him into custody, took

him off the property, and recovered the gun, which appeared to be in contradiction to his testimony

on direct examination that the gun had been recovered while on the porch. Gonzalez admitted that

he never recovered the Corona bottle following the arrest, nor was one ever collected for inventory.

When asked if he had seen what the contents of the bottle were, Gonzalez responded, “[a] Corona

4 Gonzalez’s arrest report was not introduced into evidence. However, it was included in part of the impounded record on appeal and was referenced by the trial court judge in its ruling on the motion to suppress.

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bottle usually has beer in it.” When asked if the bottle had been full or empty, he answered “it still

had some fluid in there.”

¶ 30 Following closing argument, the trial court denied defendant’s motion.

¶ 31 B. Bench Trial

¶ 32 On April 4, 2017, the case proceeded to a bench trial, where Officer Gonzalez was the sole

witness. We recite Gonzalez’s trial testimony to the extent that it varies or further elaborates on

testimony elicited during the suppression hearing.

¶ 33 On direct examination by the State, Gonzalez testified that on December 20, 2013, at 11:45

p.m., while on patrol, he noticed defendant holding a Corona bottle on a public sidewalk from

about two to three car lengths away. Gonzalez again identified defendant in court as the individual

holding the bottle.

¶ 34 After Gonzalez observed defendant, he exited the vehicle and kept his eyes on defendant

“the whole time.” Gonzalez announced his office and told defendant to stop. Defendant began to

walk from the public sidewalk to behind the gate into his residence. The gated fence “came right

up” to the public sidewalk. Gonzalez proceeded to “unlock[]” the gate and went through. Gonzalez

followed defendant as he began to climb the exterior stairs of the property leading to the second

floor. He estimated that the staircase had about 12 to 15 stairs, but he never lost sight of defendant

as he was about 10 feet behind him.

¶ 35 At some point, when defendant was about four to five steps up the stairs, Gonzalez

observed defendant put his right hand in his right outer coat pocket. Gonzalez ordered defendant

to remove his hand from his pocket because it was a “custodial search” and he was going to place

defendant in custody for drinking on a public way. Defendant initially refused to comply. Gonzalez

gave defendant a second verbal command, and then placed his left hand on defendant’s right wrist.

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After two or three commands, defendant complied and Gonzalez removed defendant’s hand from

his pocket. Gonzalez then reached into the pocket and recovered a .45-millimeter semi-automatic

handgun, which was fully loaded with live ammunition. Gonzalez estimated that about eight to ten

seconds elapsed from the time he saw defendant with a Corona bottle to when he recovered the

handgun.

¶ 36 Upon cross-examination, Gonzalez testified as follows. He had also observed Solano

outside of 1832 West 22nd Place and knew that he was “wanted.” He did not have any information

regarding the defendant and did not know that 1832 West 22nd Place was defendant’s home. A

woman had also been outside the residence that night. Gonzalez did not remember if a third male

had been present.

¶ 37 When asked if he was “out there looking for people drinking beer on the sidewalk,” he

responded, “we were out there looking for criminal activity.” When asked if he was looking for

guns, he responded, “we were out there looking for criminal activity, and if it happens to be, it is

what it is whatever criminal activity is out there.” Recovery of guns would be an “important

mission” for the unit, but he made “multiple arrests” that did not always involve guns. The area in

which the arrest occurred was a “high crime, high gang activity area,” and the unit was out looking

for “potential gang activity.” However, he did not observe Solano or defendant “do anything that

exhibited gang activity.” He denied seeing defendant place anything in his pockets when he

initially spotted defendant “drinking” from a Corona bottle on a public way.

¶ 38 When asked if Solano closed the gate to the property when he first approached, Gonzalez

clarified that it had been defendant who had done so. The gate had been shut but not locked.

Gonzalez described the property as a two-flat and not a single-family home. He clarified that the

yard was “not so much a yard” but rather a “regular city lot,” with the exterior stairs “go[ing] right

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up to the edge of the sidewalk.” The stairs also led to defendant’s residence on the second level.

Defendant had not run up the stairs, and Gonzalez encountered him on the third step with Solano

at the top of the landing. When Gonzalez reached defendant, both were located on the same set of

stairs and looking right at each other. After he instructed defendant to remove his hands from his

pocket and defendant did not comply, Gonzalez grabbed defendant’s wrist and “assisted him” in

removing his hand. Gonzalez then recovered the handgun with his right hand and placed him into

custody. Defendant did not make any statements or admissions about the gun.

¶ 39 Following the conclusion of Gonzalez’s testimony, the parties stipulated that defendant

had never been issued and did not have a valid FOID card at the time of his arrest. Defendant

subsequently moved for a directed finding, which the trial court denied. Following closing

argument, the trial court found defendant guilty on both counts.

¶ 40 E. Posttrial Proceedings

¶ 41 Defendant timely filed a posttrial motion in which he sought to have the court enter a

finding of not guilty, or, alternatively, a new trial. No ruling was made by the trial court on this

motion at the time. Defendant was ultimately sentenced to two years in the Illinois Department of

Corrections with one year of mandatory supervised release. 5 Defendant’s motion for

reconsideration on his sentence was further denied.

¶ 42 G. First appeal (Case No. 1-19-1083)

¶ 43 Defendant filed a notice of appeal on April 29, 2019. On September 21, 2021, we issued

an unpublished order pursuant to Illinois Supreme Court Rule 23 (eff. April 1, 2018). Therein, we

dismissed defendant’s appeal as premature pursuant to Supreme Court Rule 606(b) (eff. March 1,

5 The record reflects that defendant has completed his sentence and is no longer in IDOC custody.

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2021). Specifically, we determined that the record on appeal did not demonstrate that the trial court

had ruled on defendant’s timely posttrial motion for a new trial.

¶ 44 H. Remand

¶ 45 On remand, defendant’s posttrial motion was heard by a different judge. First, the court

addressed defendant’s motion to reconsider the denial of the motion to suppress, which it denied.

The court indicated that it had reviewed the suppression hearing transcript, which included

Gonzalez’s testimony and the court’s previous findings. The court stated that it “concur[red] in the

previous court’s decision, which was based on “the officers’ testimony that the officers acted

reasonably during the course of the investigation” and that the record showed “reasonable

suspicion that rose to probable cause.” The court specifically noted that “defendant had failed to

comply with the officer’s request and that his hand was in his pocket and that numerous requests

to remove that were not followed by the defendant.”

¶ 46 Next, the court denied the entirety of any outstanding issues in the posttrial motion and

indicated that the “previous order” of April 4, 2019 was “to stand.” Following the court’s ruling,

defendant filed a timely second appeal.

¶ 47 II. ANALYSIS

¶ 48 A. Standard of Review

¶ 49 On a motion to quash and suppress evidence, the defendant bears the burden of proof.

People v. Cregan, 2014 IL 113600, ¶ 23. If the defendant makes a prima facie showing that the

evidence was obtained in an illegal search or seizure, the burden then shifts to the State to provide

evidence to rebut that presumption of illegality. Id. However, the ultimate burden of proof lies

with the defendant. Id.

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¶ 50 When assessing the trial court’s ruling on a motion to suppress, our review is two-fold,

beginning with our adoption and deference to the trial court’s factual findings unless they are

against the manifest weight of the evidence. People v. Lozano, 2023 IL 128609, ¶ 29. In a

suppression hearing and at a bench trial, it is well-established that it is the role of the trial judge to

determine the credibility of the witnesses, to weigh evidence and draw reasonable inferences

therefrom, and to resolve any conflicts in the evidence. People v. Richardson, 234 Ill. 2d 233, 251-

52 (2009). However, we also review de novo the legal question of whether suppression is

warranted. Id. Accordingly, we review the totality of the circumstances and the facts adduced at

both the suppression hearing and at trial. Id. at 251. Because our review of the legal question is de

novo, we may affirm on any basis found in the record. People v. Bahena, 2020 IL App (1st)

180197, ¶ 25. Additionally, “a reviewing court may undertake its own assessment of the facts as

they relate to the issues and may draw its own conclusions when deciding what relief should be

granted.” People v. McCavitt, 2021 IL 125550, ¶ 53.

¶ 51 B. Arguments

¶ 52 The parties do not dispute that law enforcement did not have a warrant for defendant’s

arrest. Here, the parties disagree as to whether: (1) law enforcement had probable cause to arrest

where the officer did not see defendant “actually drinking on a public way” as prohibited by

Chicago’s ordinance; and (2) whether the “hot pursuit” doctrine justifies police intrusion into the

home or its curtilage to execute a warrantless arrest for a non-violent misdemeanor, such as

drinking on a public way. As the arguments implicate fourth amendment principles, we begin our

analysis there.

¶ 53 C. Fourth Amendment

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¶ 54 The fourth amendment of the United States Constitution protects the “right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960)

(application of the fourth amendment to state officials through the fourteenth amendment); (U.S.

Const., amend. XIV). Article I, section 6 of the Illinois Constitution provides the same. Ill. Const.

1970, art. I, § 6; Lozano, 2023 IL 128609, ¶ 30; see also People v. Lindsey, 2020 IL 124289, ¶ 15

(“This court has long held that the search and seizure clause of our state constitution stands in

‘limited lockstep’ with its federal counterpart.”) The amendment protects people, not places, and

the extent of that protection depends on where the people are. Lindsey, 2020 IL 124289, ¶ 16. The

“essential purpose” of the fourth amendment is to impose a standard of reasonableness on law

enforcement “to safeguard the privacy and security of people against arbitrary invasions.” People

v. Smith, 2015 IL App (1st) 131307, ¶ 21 (quoting People v. McDonough, 239 Ill. 2d 260, 266

(2010)). Thus, the “central requirement of [any] fourth amendment analysis is reasonableness.”

People v. Lomax, 2012 IL App (1st) 103016, ¶ 27.

1. The Warrant Requirement, Probable Cause, and Exceptions

¶ 56 Defendant first contends that there was no probable cause to arrest him because the officer

did not observe him actually drinking on the public way, as required by Chicago’s ordinance. He

maintains that the ordinance does not proscribe “mere possession of an open bottle of alcohol.”

Defendant points out that Officer Gonzalez did not testify that he saw defendant drink from the

bottle; instead, he only described seeing him holding an open bottle of alcohol that was still

partially full. In support of this contention, defendant points to a separate subsection of the

ordinance prohibiting open possession of alcohol on the public way while in a motor vehicle.

Additionally, defendant continues, Gonzalez also never testified that he observed defendant

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slurring his words, that he smelled of beer, or appeared otherwise intoxicated, citing People v.

Gaytan, 2021 IL App (1st) 192228-U. Finally, defendant concludes, in conjunction with Hanen’s

testimony that he had not been drinking, no beer bottle was ever recovered from the scene.

¶ 57 The State responds that there was sufficient probable cause based on the totality of the

circumstances. The State asserts that Gonzalez did not need to actually observe defendant drinking

from a beer bottle because, given the facts known to the officers at the time, it was reasonable to

infer that he was violating the ordinance, which the trial court found to be credible over that of his

ex-girlfriend’s testimony. We agree with the State.

¶ 58 We first turn to the ordinance. In reviewing the provision, we ascertain and give effect to

the intent of the legislature, which is most reliably shown through the plain and ordinary meaning

of the statutory language. People v. Whitehead, 2013 IL 128051, ¶ 18; see also Scott v. City of

Chicago, 2015 IL App (1st) 140570, ¶ 11 (applying same principles to municipal ordinances).

Further, we strictly construe criminal or penal statutes in favor of the accused, but also assume that

the legislature does not intend to produce absurd or unjust results. Whitehead, 2013 IL 128051, ¶

18. In addition to considering the legislature’s chosen language, we also take into account “the

reason for the law, the evil to be remedied, and the purpose to be obtained thereby.” Id.

¶ 59 Section 8-4-030(a)(1) of the municipal code (Chicago Municipal Code § 8-4-030(a)(1)

(amended at Chi. City Clerk J. Proc. 52958 (May 8, 2013)) is a Class A misdemeanor offense

which prohibits drinking alcohol in public ways. Specifically, section 8-4-030(a)(1) prohibits “any

person to drink any alcoholic liquor as defined by law on any public way or in or about any motor

vehicle upon a public way in the city” with certain exceptions. Id. Violation of this ordinance is

generally assessed through a fine ranging between $100 and $500, or a period of imprisonment of

a period of six months, or both. Chicago Municipal Code § 8-4-030(a)(3) (amended at Chi. City

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Clerk J. Proc. 52958 (May 8, 2013)). In contrast, section 8-4-30(a)(2) makes it unlawful for any

person to “transport, carry, possess or have any alcoholic liquor in or upon or about any motor

vehicle upon any public way in the city except: (1) in the original package and with the seal

unbroken, or (2) in a package properly sealed, bagged, and receipted pursuant to section 6-33 of

the Liquor Control Act of 1934[.]” Chicago Municipal Code § 8-4-30(a)(2) (amended at Chi. City

Clerk J. Proc. 52958 (May 8, 2013)).

¶ 60 We understand defendant’s argument on this point to mean that, because the statute by

which he was charged does not proscribe mere possession of alcohol, there was no probable cause

to support an arrest for drinking on the public way, given that he was only observed to be in

possession of a beer bottle. In contrasting that provision with the one prohibiting alcohol in a motor

vehicle, defendant argues that the City Council clearly knows how to prohibit mere possession of

an open alcohol bottle, but chose not to for possession merely on a sidewalk. This distinction,

defendant offers, is based on long-standing practices of prohibiting open alcohol containers due to

the “special dangers posed by intoxicated drivers,” whereas the same dangers do not exist simply

for standing on a public sidewalk. Therefore, defendant reasons, if someone is to be held liable for

violating the ordinance while standing on the sidewalk, that person must be shown to be actually

drinking.

¶ 61 We find defendant’s argument to be wholly without merit. The two separate provisions

seek to address two separate evils, one being drunk driving, and the other, disorderly conduct.

Notably, defendant offers absolutely no authority on which to base his argument, but taken to its

logical conclusion, defendant’s argument would mean that, unless an offender is actually caught

with a receptable of alcohol placed on his or her mouth, and we further suppose, in the process of

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swallowing, no violation of the ordinance has occurred. We do not believe that the City Council

intended such absurdity.

¶ 62 Even so, defendant nevertheless argues that “it is wholly legal under Chicago’s alcohol

ordinance to step onto the sidewalk holding a partly empty beer bottle, for example, to dispose of

a bottle in the garbage, to carry the bottle to finish it at a neighbor’s home, or just to stretch one’s

leges after sitting on the stoop talking with friends.” That might be the case. However, that was

not the evidence presented at the suppression hearing, the burden of which rested with defendant.

Gonzalez’s testimony at the suppression hearing was that he had spotted defendant holding a

Corona bottle on a public sidewalk from a distance of two to three car lengths away, and further

identified defendant in court as that individual. However, at trial, although he also said that he only

observed him holding the bottle, he later responded that he did see defendant drinking from it, a

contradiction unexplored by defense counsel during questioning. Regardless of this inconsistency,

it is reasonable to assume that even a layperson could conclude that someone holding a half-empty

bottle of alcohol had likely been drinking it at some point, especially given the time in which these

events occurred, at midnight.

¶ 63 That said, we next consider whether there was probable cause to support defendant’s

warrantless arrest for drinking on the public way. “Probable cause to arrest exists when the facts

known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to

believe that an arrestee has committed a crime.” People v. Grant, 2013 IL 112734, ¶ 11. “The

existence of probable cause is an objective determination that must be made on a case-by-case

basis and depends upon the totality of the circumstances at the time of the arrest.” People v. Craine,

2020 IL App (1st) 163403, ¶ 29; see also District of Columbia v. Wesby, 583 U.S. 48, 56-7 (2003)

(“To determine whether an officer had probable cause for an arrest, we examine the events leading

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up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an

objectively reasonable officer, amounts to probable cause.”) (Internal quotations and citations

omitted.)

¶ 64 “[W]hether probable cause exists is governed by commonplace considerations, and the

calculation concerns the probability of criminal activity, rather than proof beyond a reasonable

doubt.” People v. Hopkins, 235 Ill. 2d 453, 472 (2009). Although “[m]ere suspicion” is inadequate

to establish probable cause (People v. Butler, 2021 IL App (1st) 171400, ¶ 42), probable cause

also considers the arresting officer’s “training and experience to draw inferences and make

deductions that might well elude an untrained person.” People v. Jones, 215 Ill. 2d 261, 274 (2005).

We are also mindful that a probable cause determination is assessed pursuant to “practical

considerations instead of technical legal rules.” Butler, 2021 IL App (1st) 171400, ¶ 49. Further,

“probable cause does not even demand a showing that the belief that the suspect has committed a

crime be more likely true than false.” People v. Wear, 229 Ill. 2d 545, 564 (2008).

¶ 65 Generally, a search and seizure is unreasonable if it is conducted without a warrant

supported by probable cause. Lomax, 2012 IL App (1st) 103016 ¶ 28; McCavitt, 2021 IL 125550,

¶ 56 (noting that the fourth amendment contains two separate clauses, the reasonableness clause

and the warrant clause, with a strong preference for searches conducted pursuant to a warrant).

There are, however, some exceptions to the warrant requirement, which are “few in number and

carefully delineated.” Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (quoting United States v.

United States District Court for the Eastern District of Michigan, Southern Division, 407 U.S. 297,

319 (1972)); see also Texas v. Brown, 460 U.S. 730, 735 (1983) (although it is procedurally

preferred for law enforcement to procure a warrant, “in a wide range of diverse situations, we have

recognized flexible, common-sense exceptions to this requirement.”). One such exception is

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exigency. Welsh, 460 U.S. at 749-50. Relevant here, courts have found the presence of exigent

circumstances where police are in “hot pursuit” of a suspect fleeing from a public place into his or

her residence. People v. Wimbley, 314 Ill. App. 3d 18, 25-6 (2000).

¶ 66 The evidence at both the suppression hearing and the bench trial was that Gonzalez

observed defendant with a partially filled beer bottle on the street in Chicago. The inference to be

drawn is that defendant was drinking on the public way. Notably, other than Hanen’s testimony,

which was disbelieved by the trial court, defendant offered no alternative explanation as to why

he was holding the bottle. People v. Gherna, 203 Ill. 2d 165, 182 (2003) (in assessing a Terry stop,

observation of a beer bottle, in conjunction with perceived age of defendant, would reasonably

lead an officer to have a justifiable basis to assume that underage drinking may be going on).

Based on the ordinance and the evidence presented, we hold that there was probable cause to

support defendant’s arrest.

¶ 67 Further, we find defendant’s reliance on People v. Gaytan unpersuasive as the facts there

are inapposite. 2021 IL App (1st) 192228-U. There, the arresting officers followed the staggering

defendants from a bar, believing that some offense had been committed, and continued to do so

until their beliefs were confirmed by eventually seeing a cup of unidentifiable liquid that the officer

presumed to be alcohol. Id. ¶¶ 7, 27-29. Here, it was the testimony of Gonzalez, who the trial court

found credible, that he saw initially saw defendant on the street, holding a partially filled beer

bottle, from which he inferred that defendant was drinking in violation of the city’s ordinance.

¶ 68 Defendant argues, however, even if we find probable cause based on the ordinance

violation, we may still find his arrest to be unconstitutional by looking at the circumstances by

which it occurred. We turn to those considerations now.

¶ 69 2. Hot Pursuit and Retroactivity Concerns

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¶ 70 Defendant contends that because the “hot pursuit” doctrine cannot be used to justify the

warrantless entry into the home or its curtilage to conduct an arrest for a mere non-violent

misdemeanor, the arrest and subsequent search on the steps of his home was unlawful. Defendant

asserts that there is no legal distinction in being arrested on the fenced-off stairway of his home

from that of an arrest in the home, even if the gate to property was unlocked, as it signaled an

intent to exclude Gonzalez from the property. Finally, defendant continues, there were no exigent

circumstances or any indication that his conduct posed an imminent danger to public safety, given

that Gonzalez admitted to not having any information about him prior to the encounter. Defendant

relies almost exclusively on Lange v. California, 594 U.S. ___, 210 L.Ed. 2d 18, 141 S. Ct. 2011

(2021), to support his claim, where, according to him, there should be no “residual uncertainty”

concerning the outcome of his case following Lange.

¶ 71 Briefly, in Lange, the United States Supreme Court assessed whether the pursuit of a

fleeing misdemeanor suspect categorically qualified as an exigent circumstance. Id. at 2016. The

court noted that the hot pursuit doctrine had always operated under the assumption that, when a

“minor offense alone is involved, police officers do not usually face the kind of emergency that

can justify a warrantless home entry.” Id. at 2020. However, when the facts “[added] a suspect’s

flight,” “the calculus changes[.]” Id. at 2021. The court reasoned that “in a great many cases, flight

creates a need for police to act swiftly,” particularly if a suspect sought to discard evidence or

demonstrated a willingness to flee again during the time a warrant was being obtained. Id.

Nevertheless, the court cautioned, not every case of misdemeanor flight poses such a danger,

especially when involving “minor, non-violent conduct.” Id. As such, the court stated, “even when

a misdemeanant has forced the police to pursue [them] (especially given that ‘pursuit’ may cover

just a few feet of ground),” it may still be necessary for police to obtain a warrant. Id. Accordingly,

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the court proclaimed that “[w]hen the totality of circumstances shows an emergency—such as

imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from

the home—the police may act without waiting.” Id.

¶ 72 For its part, the State cites People v. Wear, 229 Ill. 2d 545 (2008), as dispositive. The State

argues that, even if defendant had an expectation of privacy on the “porch,” the controlling law at

the time of his arrest, Wear, categorically allowed for Gonzalez’s pursuit of defendant, even for a

misdemeanor offense, as the underlying events began in a public place. Further, the State argues,

defendant’s flight from officers supported their actions to follow him onto the property. Even

assuming he did not, the State continues, defendant had no reasonable expectation of privacy on

the steps located outside the home, citing, among others, United States v. Santana, 427 U.S. 38

(1976).

¶ 73 Defendant makes short shrift of Wear, citing to it for the singular purpose of distinguishing

the underlying offense there, a misdemeanor DUI offense, from the “mere municipal ordinance

violation” in his case. The State does not do substantially better, offering, without citation to

authority, only that Wear was the law in effect at the time of the arrest, and should therefore govern

the outcome of this case.

¶ 74 We briefly summarize Wear, a case from our supreme court, which was controlling law at

the time of defendant’s arrest. In Wear, the issue on appeal was whether law enforcement’s

warrantless and non-consensual entry into the defendant driver’s home was excused pursuant to

hot pursuit doctrine after law enforcement witnessed the defendant’s erratic driving and various

traffic violations en route to his home. 229 Ill. 2d at 563. Although the court acknowledged that

even with probable cause a warrantless entry into one’s home was generally prohibited by the

fourth amendment, a warrantless arrest may still be reasonable if it was set in motion in a public

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place and the suspected attempted to escape to a private place. Id. at 568-69. Further, the court

noted, in assessing the reasonableness of the arrest, previous precedent dictated that whether an

exigency existed to justify the arrest also included evaluation of the “gravity of the underlying

offense for which the arrest is being made.” Id. at 570. The Wear court observed that, in Illinois,

an offender’s first driving under the influence (DUI) offense was a Class A misdemeanor, with the

penalty being punishable by up to 364 days in jail, thus indicating that the state’s significant

interest in deterring intoxicated drivers from being on the road. Id. at 569-70.

¶ 75 As noted, when defendant was arrested in 2013, Wear was controlling law. Since then, the

United States Supreme Court issued Lange. Thus, a determination of what decisional law applies,

Lange or Wear, is essential to the disposition of this case.

¶ 76 Defendant’s position requires retroactive application of Lange. Whether a judicial opinion

announcing a new constitutional rule has retroactive effect to cases pending on direct review has

a long and storied past, beginning with the landmark case of Linkletter v. Walker, 381 U.S. 618

(1965) (holding that whether the new exclusionary rule announced in Mapp v. Ohio had retroactive

effect was determined by examining the purpose of the new rule, the States’ reliance on the prior

law, and the effect on the administration of justice of a retroactive application of the new rule)6;

see also Desist v. U.S., 394 U.S. 244, 249 (1969). However, more than twenty years later, in

Griffith v. Kentucky, 479 U.S. 314, 321-22 (1987), the high court reconsidered and ultimately

rejected the Linkletter standard for cases pending on direct review, reasoning that the standard had

led to inconsistent and disparate results. Specifically, the Griffith court held that “a new rule for

6 Mapp v. Ohio, 367 U.S. 643 (1981), held that the State’s exclusion of evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required by the Due Process Clause of the Fourteenth Amendment.

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the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal,

pending in direct review or not yet final[.]” Id. at 328. This was based on the court’s conclusion

that “failure to apply a newly declared constitutional rule to criminal cases pending on direct

review violate[d] basic norms of constitutional adjudication.” Id. at 322.

¶ 77 Years later, citing Griffith favorably, our supreme court in People v. Hauschild, 226 Ill. 2d

63 (2007), observed the “well-established” principle that “judicial opinions announcing new

constitutional rules applicable to criminal cases are retroactive to those cases pending on direct

review at the time the new rule is announced.” Id. at 77-8. Our court reasoned that the “failure to

apply a new constitutional rule to criminal cases pending on direct review, even when that rule is

a ‘clear break’ [from] the past, violates the basic norms of constitutional adjudication.” Id. at 78

(quoting Griffith, 479 U.S. at 322). Regardless of either party’s interpretation of Wear, it is clear

that Lange clarified questions of clear “constitutional dimension” that affect defendant’s case here.

Id. at 78; see also People v. Erickson, 117 Ill. 2d 271, 289 (1987) (comparing cases involving rules

of “constitutional dimension” with changes that are statutory in nature). Accordingly, we resolve

the retroactivity question in defendant’s favor and hold that Lange applies to the resolution of his

appeal.

¶ 78 4. Curtilage

¶ 79 Significant to our determination of the reasonableness of Gonzalez’s conduct is whether

the arrest was in an area considered to be within the curtilage of defendant’s home. Throughout

the record, we observe that the location of defendant’s arrest is variously characterized by the

parties as either the “porch” or the “steps.” A photo depicting the location of defendant’s arrest

was admitted into evidence and is a part of the record on appeal. The photo reflects what appears

to be a two-flat apartment building with a potential basement and third-floor unit. The property is

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enclosed by a tall black fence with a gate. Eight to ten steps sit directly behind the fence and lead

to a front door. The public sidewalk where defendant was purportedly first spotted directly abuts

the property.

¶ 80 The State appears, with minor exception, to accept that the steps leading to defendant’s

residence were within the curtilage of the home. Indeed, during oral argument, the State expressly

conceded that the property upon which Gonzalez was arrested was curtilage and “private space,”

but otherwise maintained that Gonzalez’s authority to arrest commenced on the sidewalk, which

could not be thwarted by defendant’s retreat to a private place, citing United States v. Santana,

427 U.S 38, 43 (1976), in support. Defendant also simply asserts that the steps were a part of the

curtilage.

¶ 81 Although not seriously debated by either party, as part and parcel of our analysis, we pause

to consider where defendant was searched and arrested after first being spotted on the public way.

As noted above, the fourth amendment’s protections extend to people, not places, but where the

defendant was at the time of arrest informs whether the defendant has established a legitimate

expectation of privacy. Lindsey, 2020 IL 124289, ¶ 16. That expectation of privacy must be

grounded in either formal property rights or informal privacy rights. Id.

¶ 82 The leading United States Supreme Court case concerning curtilage around the home is

Florida v. Jardines, 569 U.S. 1 (2013), which concerned a search of a front porch of a residential

property. Therein, the court reiterated the area “immediately surrounding and associated with the

home” or its “curtilage” was “part of the home itself” for purposes of the fourth amendment. Id. at

6. Significantly, the court noted that the area around the home is “intimately linked to the home,

both physically and psychologically,” and “where privacy expectations are most heightened.”

(Internal citations and quotation marks omitted.) Id. at 7. Applying these principles to the case

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before it, the court further held that the front porch of a single-family residence was “the classic

exemplar of an area adjacent to home” where the “activity of home life extends.” (Internal

quotation marks and citations omitted.) Id.

¶ 83 We are mindful that, under Santana, even an area considered a private dwelling may still

be considered a public place if the area in which the individual is located is still “exposed to public

view, speech, hearing, and touch,” as if one is “standing completely outside [their] home.”

Santana, 427 U.S. at 42. The “guiding principle is reasonableness, and each case is evaluated based

on the totality of the circumstances known to the officers at the time of the warrantless entry.” Id.

Based on the facts before us, including the conduct which set in motion the officers’ response, we

believe the stairs leading to defendant’s residence may properly be characterized as curtilage of

the home.

¶ 84 We find our supreme court’s decision in People v. Whitehead, 2023 IL 128051, ¶ 34,

instructive. In assessing another provision within our criminal code, our supreme court decided

that the stoop of a home was within the curtilage of a home. The stoop in question was affixed to

an apartment complex between two apartment units. In its analysis, it noted that the “commonly

understood purpose of a stoop or step in front of a private dwelling is to provide convenient access

to a home.” Id. ¶ 22. However, even if “this convenience may be enjoyed by certain members of

the public (such as invited guests or delivery personnel), the convenience is not provided to the

public.” (Emphasis added.) Id. Instead, “[t]he purpose of the stoop is for the owner or resident of

the private dwelling to access his or her home” and the “fact that certain members of the public

may access it is secondary to the purpose of the stoop.” Id. Thus, “[t]he stoop in front of a private

dwelling—even if that stoop is shared by a neighbor—hardly constitutes a public place.” Id. ¶ 24.

The court reasoned that “expanding the definition of ‘public place of accommodation’ to include

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the stoop, step, or small walkway in front of a private home would amount to an absurd or unjust

result.” Id. Moreover, the court noted, “public accessibility alone, is insufficient to transform a

stoop, step, or walkway into a ‘place of public accommodation.’” Id. ¶ 25.

¶ 85 The court then determined that a stoop is within the curtilage of the home. Id. ¶ 34. In

reaching its conclusion, the court cited favorably its past decisions in People v. Bonilla, 2018 IL

122484 (warrantless sniff by drug-detection dog at threshold of defendant’s apartment door in

multi-unit complex violated the fourth amendment), and People v. Burns, 2016 IL 118973 (third-

floor landing outside of an apartment considered curtilage). Id.

¶ 86 D. Motion to Suppress

¶ 87 With these principles in mind, we return to the record to determine the reasonableness of

the events of December 20, 2013. To be clear, it was drinking on the public way that set in motion

Gonzalez’s pursuit and formed the basis of defendant’s arrest. It is against this backdrop that we

consider the reasonableness of the pursuit which led to defendant’s arrest. We acknowledge that

under Wear, and on these facts, Gonzalez’s pursuit could perhaps pass muster, given that the

ordinance violation underlying defendant’s arrest began in a public place and ended on what can

be considered the curtilage of private property. However, based on the totality of the

circumstances, and as assessed today under Lange, we conclude that Gonzalez’s actions were not

reasonable.

¶ 88 As Lange explains, “misdemeanors run the gamut of seriousness,” ranging from “public

intoxication” to domestic violence. 141 S. Ct. at 2020. It is true that the city of Chicago has

determined that the crime of drinking on the public way is a misdemeanor jailable offense. Id. §

8-4-030(a)(3). Thus, as noted in Wear, the public body has attributed a larger degree of seriousness

to the crime of public drinking, versus other non-jailable civil offenses. See Welsh, 466 U.S. at

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754 (categorizing a DUI as a noncriminal, civil offense with no imprisonment penalty). However,

when viewing the circumstances of this specific arrest, we still do not see the same “kind of

emergency that can justify a warrantless home entry.” Lange, 141 S. Ct. at 2020. Notably, the

misdemeanor offense of drinking on the public way, on its own, is not a “grave offense nor a crime

of violence.” See People v. Smock, 2018 IL App (5th) 140449, ¶ 23 (no probable cause for

warrantless entry of home and arrest for misdemeanor disorderly conduct); People v. Olson, 112

Ill. App. 3d 20, 24 (1983) (warrantless nonconsensual entry of home was not justified to arrest for

nonviolent Class C misdemeanor cannabis conviction).

¶ 89 Of course, we must also consider defendant’s retreat into his home. Lange expressly noted

that a suspect’s flight may change the calculus where the police may need to act swiftly. 141 S.

Ct. at 2021. Indeed, some courts have said that “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.” People v. Thomas, 2019 IL

App (1st) 170474, ¶ 19; see also Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); but see People

v. Horton, 2019 IL App (1st) 142019-B, ¶ 63 (“headlong flight” may be a “pertinent factor” in

assessing an officer’s suspicion for criminal activity, but on its own does not connote criminal

activity.) At the time of initial observation, Gonzalez did not know that defendant lived at the

residence into which he retreated after Gonzalez announced his office. However, we must also

consider the context of the flight. See Lange, 141 S. Ct. at 2022. The evidence depicted a quick

and chaotic chain of events where any reasonable person may experience a “noncriminal impulse

to avoid interactions with police.” Horton, 2019 IL App (1st) 142019-B, ¶ 7.

¶ 90 By that same token, Lange also counseled that, unless the totality of circumstances shows

an emergency, such as through imminent harm to others, a threat to the officer himself, or

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destruction of evidence, even if pursuit covers a “few feet of ground,” law enforcement might still

need to procure a warrant. 141 S. Ct. at 2021. Here, Gonzalez’s limited testimony did not indicate

any such circumstances. Nothing in the record demonstrated such an emergency beyond,

hypothetically, as Gonzalez did not testify to this, defendant’s suspected alcohol level possibly

dissipating through the passage of time, which the record does not reflect happened after defendant

was arrested. See Welsh, 466 U.S. at 753-54. Further, it was Gonzalez’s own testimony that

defendant did not actually run, but instead walked behind the gate, which, as shown through the

parties’ stipulated admission to the photograph of defendant’s house, was directly behind the

public sidewalk. People v. Bloxton, 2020 IL App (1st) 181216, ¶ 21 (even when officer told

defendant to stop and defendant continued to walk to the front porch, walking away did not create

probable cause). Thus, even Gonzalez’s approach, beginning on the public way and then within

the property, appears grossly disproportionate to the crime he purportedly observed. 7 Smock, 2018

IL App (5th) 140449, ¶ 25 (for misdemeanor offense of disorderly conduct, officers could have

simply issued the citation and left); compare People v. Lake, 2015 IL App (4th) 130072, ¶ 32 (in

assessing whether a seizure occurred, court found that the tapping of defendant’s shoulder to

question him was “one of many nonoffensive methods our culture and society accept as a measure

of common courtesy to attract another person’s attention.”) Thus, from the outset, even if for a

valid reason, his initial encounter with defendant appeared far from peaceable or reasonable,

7 We note defendant’s citation to the Chicago Police Department’s foot pursuit policy. (May 26, 2021) (Last accessed April 25, 2024) https://home.chicagopolice.org/chicago-police-department- announces-new-foot-pursuit-policy/ (noting that foot pursuits are appropriate only when there is probable cause for an arrest and that tactics should be used to avoid foot pursuit, including “continual communication with a subject and encouraging officers to position themselves in such a way to reduce the opportunity for a foot chase,” and “ensuring circumstances involving a foot pursuit are considered before any foot pursuit takes place, [where] officers must ask themselves if the need to apprehend the subject is worth the risk to responding officers, the public, or the subject[.]”)

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suggesting that he himself created the exigency or circumstances for pursuit that the State attempts

to apply here.

¶ 91 Indeed, the State acknowledges that Gonzalez did not explicitly testify to other exigencies

at the time of hearing, because according to the State, it was not necessary to elicit that sort of

testimony prior to Lange. However, the State insists that there was a demonstrated exigency, as

defendant had been with Solano, who the officers knew was wanted for a weapons offense.

Additionally, the State notes, when Gonzalez caught up to defendant, he refused to remove his arm

from a jacket pocket.

¶ 92 Preliminarily, although there appears to be no dispute that officers had a warrant for

Solano, any legality to arrest him does not automatically transfer to defendant just because he was

with him. See People v. Surles, 2011 IL App (1st) 100068, ¶ 29 (without more, no evidence to

warrant arrest of passenger in a car whose driver committed a traffic violation that precipitated

police encounter); People v. Lee, 214 Ill. 2d 476, 485-86 (2005) (neither a defendant’s presence in

a certain area nor his association with certain people is sufficient for probable cause). Further, it

had not been Gonzalez’s testimony that he had actually been looking for Solano specifically, only

that he had been “looking for somebody in particular with a warrant” in a “high-crime area.”

Additionally, Gonzalez had no knowledge of defendant’s background or that he would be likely

to flee if apprehended immediately. People v. Davis, 398 Ill. App. 3d 940, 949-50 (2010) (even

upon allegation of battery, police had no reason to believe that the defendant was armed, that a

weapon had been used in underlying offense, or that the defendant had a violent history to justify

warrantless entry into the home). Gonzalez also admitted that he had not observed any other

activity from either defendant, Solano, or even within the surrounding area that would have

required that level of interference, even if he knew it to be a “high-crime” area. Moreover, even a

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purported ordinance violation in a “high-crime area” does not justify the intensity of the encounter.

See Surles, 2011 IL App (1st) 100068, ¶ 38.

¶ 93 Gonzalez also did not explicitly testify to the fact that he feared for his or his fellow

officer’s safety. It is true that the record reflects defendant failing to comply numerous times with

Gonzalez’s command to remove his right hand from his jacket pocket. 8 However, Gonzalez did

not testify that he feared for his life or the safety of others because he believed defendant to be

armed and dangerous; instead, he merely stated that defendant was going to be placed under arrest

for drinking on the public way. He also admitted to not noticing anything on defendant’s person,

either through a bulge or protrusion, that indicated that he could be carrying a weapon. See Surles,

2011 IL App (1st) 100068, ¶ 40 (even observation of a bulge in a waistband is not an independent

basis for a pat-down search); People v. Harris, 2011 IL App (1st) 103382, ¶ 17.

¶ 94 Moreover, even if he had observed something resembling a firearm, Gonzalez still would

have had to inquire if defendant had the necessary licenses for it. See Thomas, 2019 IL App (1st)

170474, ¶ 40. Indeed, Gonzalez did not learn that defendant did not have a valid FOID Card and

was under 21 years of age until he was processing him at the police station, and it is well-

established now, and known at the time of arrest, that merely possessing a gun no longer

automatically amounts to criminal conduct. See People v. Aguilar, 2013 IL 112116, ¶ 20 (opinion

issued September 12, 2013, with denial of rehearing December 19, 2013); Thomas, 2019 IL App

(1st) 170474, ¶ 40; Bloxton, 2020 IL App (1st) 181216, ¶ 22; Horton, 2019 IL App (1st) 142019-

B, ¶ 61. Thus, even with probable cause to arrest for the alcohol ordinance violation, and

defendant’s arrest occurring in close proximity to that observation, the need to obtain a warrant

8 We further note that Gonzalez’s testimony during the suppression hearing and at trial conflicted as to which jacket pocket side defendant’s hand was in.

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was not obviated without any immediate and clear danger to police or others. See Davis, 398 Ill.

App. 3d at 949-50.

¶ 95 There is no doubt that, on these facts, an ordinance violation for drinking on the public way

is a jailable offense. But even accepting the trial court’s credibility determinations as true,

Gonzalez’s own account of the arrest does not describe an event demanding urgency or action of

which ultimately unfolded. McCavitt, 2021 IL 125550, ¶ 53 (“[A] reviewing court may undertake

its own assessment of the facts as they relate to the issues and may draw its own conclusions when

deciding what relief should be granted.”). Gonzalez did not testify to any tips or awareness that

Solano would be on defendant’s property that night that led him to that specific location. Gonzalez

did not testify to receiving any 911 calls or witnessing other events in the area to either suggest an

exigency or any indication that defendant possessed a firearm. Even if defendant had undisputedly

been drinking on a public way, nothing about him possibly retreating into his home indicated to

Gonzalez that he posed a further imminent threat. Taking all of these facts together, we cannot

find that there were such exigent circumstances as to support a warrantless arrest, rendering it

unlawful.

¶ 96 E. Exclusionary Rule and Good Faith Exception

¶ 97 Having determined that defendant’s arrest was unlawful, we next consider whether

suppression is the appropriate remedy. Defendant contends that the firearm must be suppressed

pursuant to the exclusionary rule, particularly when arrests like his own have been the subject of

heightened public scrutiny, citing to a report authored by the Department of Justice, which

criticized the CPD’s foot pursuit practices which have since been modified.

¶ 98 The State responds that application of the exclusionary rule is inappropriate where the State

has met its burden in establishing that Gonzalez had been acting in good faith at the time of arrest.

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The State argues that the exclusionary rule should only be applied in “unusual” cases where police

conduct is found to be “sufficiently deliberate,” whereas here, Gonzalez’s conduct was objectively

reasonable and supported by binding precedent at the time, citing People v. Potts, 2021 IL App

(1st) 161219, and People v. LeFlore, 2015 IL 116799. Finally, the State concludes, courts should

reject applying the exclusionary rule in situations that would encourage bad conduct by criminal

defendants, such as encouraging defendants to flee and disobey lawful orders by law enforcement

which would run counter to the intent of the exclusionary rule.

¶ 99 In reply, defendant argues that no binding precedent categorically directed that “hot

pursuit” could be used to justify an arrest for a municipal ordinance violation, citing Stanton v.

Sims, 571 U.S. 3 (2013) in support. Further, defendant continues, the State’s reliance on Wear is

misplaced, as the case did not hold that hot pursuit was always authorized, regardless of the

seriousness of the offense.

¶ 100 Although there is no constitutional right to have the evidence resulting from an illegal

search or seizure suppressed (LeFlore, 2015 IL 116799, ¶ 22), “[t]he prime purpose of the

exclusionary rule is to deter future unlawful police conduct and thereby effectuate the guarantee

of the Fourth Amendment against unreasonable searches and seizures.” (Internal quotation marks

and citations omitted.). Bonilla, 2018 IL 122484, ¶ 35. As such, the rule has been limited to

situations where “the deterrent purpose[] is ‘thought most efficaciously served.’ ” People v.

Manzo, 2018 IL 122761, ¶ 62 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

¶ 101 The State’s counter to the exclusionary rule is the good faith exception, which is a

“judicially created rule providing that evidence obtained in violation of defendant’s fourth

amendment rights will not be suppressed when police acted with an objectively reasonable good-

faith belief that their conduct [was] lawful, or when their conduct involved only simple, isolated

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negligence.” (Internal quotation marks and citations omitted.) Bonilla, 2018 IL 122484, ¶ 35.9

“The good-faith exception to the exclusionary rule also includes good-faith reliance upon binding

appellate precedent that specifically authorized a particular practice but was subsequently

overruled.” Id. ¶ 37; see also LeFlore, 2015 IL 116799, ¶¶ 29-31 (adopting the so-called “Davis”

expansion of the exclusionary rule). “Thus, in determining whether the good-faith exception

applies, a court must ask ‘the objectively reasonable question [of] whether a reasonably well

trained officer would have known that [the conduct] was illegal in light of all of the circumstances.’

” Leflore, 2015 IL 116799, ¶ 25 (quoting People v. Leon, 468 U.S. 897, 922, n. 23 (1984). Overall,

“the deterrent benefit of suppression must outweigh the substantial social costs in order for the

exclusion to apply.” (Internal quotations and citations omitted.) Manzo, 2018 IL 122761, ¶ 64.

“Whether the good faith exception to the exclusionary rule applies presents a legal question that

we review de novo.” Id. ¶ 67.

¶ 102 Much of the State’s argument throughout its brief is that, at the time defendant was arrested,

existing Illinois law categorically allowed for officers to engage in hot pursuit even for

misdemeanor offenses like drinking on the public way. As noted prior, we have already found

Lange to retroactively apply to the circumstances of defendant’s arrest, where Lange re-

emphasized the concept of reasonableness in warrantless arrests involving hot pursuit. Here, on

balance, Gonzalez’s encounter with defendant was not objectively reasonable, based on the “nature

of the crime, the nature of flight, and surrounding facts” that presented no such exigency, such as

9 Although not cited to by the parties, the good-faith exception has also been codified in section 114-12(b)(1) of the Code of Criminal Procedure of 1963. 725 ILCS 5/114-12(b)(1), (2) (West 2012); Manzo, 2018 IL 122761, ¶ 63.

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imminent harm of violence, destruction of evidence, or escape from the home, to excuse the

warrant requirement. Lange, 141 S. Ct. at 2021, 2022.

¶ 103 However, we would still find Gonzalez’s conduct to be unreasonable even under

controlling law at the time of defendant’s arrest. Even accepting the State’s argument that Wear

categorically allowed for hot pursuit of misdemeanor offenses without a warrant, it does not

eviscerate the reasonableness requirement underlying warrantless arrests and searches, which are

always assessed by the totality of the circumstances. See Davis v. United States, 564 U.S. 229, 241

(2011) (“[W]hen binding appellate precedent specifically authorizes a particular police practice,

well-trained officers will and should use that tool to fulfill their crime-detection and public-safety

responsibilities.”) (Emphasis theirs.) Moreover, even Wear recognized that “an important factor

to be considered when determining whether any exigency exists is the gravity of the underlying

offense,” which provided the “best indication of the State’s interest in precipitating the arrest.”

(Emphasis added.) Wear, 229 Ill. 2d at 570. Thus, we cannot find that the good-faith exception

applies here, as it is meant only to be a refuge for “objectively reasonable law enforcement

activity.” Davis, 564 U.S. at 241.

¶ 104 In sum, we conclude that the firearm recovered from defendant was obtained pursuant to

an unlawful search, and as such conclude on these facts that the trial court’s denial of the motion

to suppress was in error. See Horton, 2019 IL App (1st) 142019-B, ¶ 8. Further, because we also

find that the sole piece of evidence connecting defendant to his AUUW convictions must be

excluded, we also must conclude that the evidence supporting his convictions is insufficient and

the State cannot support its burden of reasonable doubt. Accordingly, we reverse defendant’s

conviction without remand. People v. Williams, 2020 IL App (1st) 172992, ¶ 12; Surles, 2011 IL

App (1st) 100068, ¶ 42.

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¶ 105 F. Second Amendment Challenges

¶ 106 Having determined that defendant’s warrantless arrest, although supported by probable

cause, was unreasonable, we need not address defendant’s second challenge, namely whether,

under the United States Supreme Court’s most recent decision in New York State Rifle & Pistol

Ass’n Inc. v. Bruen, 597 U.S. 1 (2022), Illinois’ prohibitions on both handgun possession and

issuance of a FOID card for those under the age of 21 years old is unconstitutional.

¶1 III. CONCLUSION

¶2 For the reasons stated, we reverse the judgment of the circuit court.

¶3 Reversed.

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