2016 IL App (1st) 141040
FIFTH DIVISION December 23, 2016
No. 1-14-1040 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 18062 ) LAMONT THOMAS, ) Honorable ) Thomas M. Davy, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Lamont Thomas was convicted of unlawful use or
possession of a weapon by a felon and sentenced to five years’ imprisonment. On appeal,
defendant contends that the trial court erred in denying his motion to quash arrest and suppress
evidence because police lacked reasonable suspicion to justify a stop pursuant to Terry v. Ohio,
392 U.S. 1 (1968). We reverse.
¶2 BACKGROUND
¶3 Defendant was arrested on January 8, 2012, and charged by indictment with four counts
of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use or possession
of a weapon (UUW) based on his September 15, 2009, possession of a handgun in public. The 1-14-1040
State charged defendant with AUUW for possessing a gun: outside of his home and the gun was
uncased, loaded and immediately accessible at the time of the offense (count 1) (720 ILCS 5/24
1.6(a)(1), (a)(3)(A) (West 2008)); outside of his home without having been issued a valid
Firearm Owner’s Identification Card (FOID card) (count 2) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)
(West 2008)); within the city of Chicago (count 3) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West
2008)) and; within the city of Chicago without having been issued a valid FOID card (count 4)
(720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2008)). Defendant was also charged with two counts
of UUW for possessing a gun (count 5) and ammunition (count 6) after having been convicted of
a felony (720 ILCS 5/24-1.1(a) (West 2008)).
¶4 Prior to trial, defendant filed a motion to quash arrest and suppress evidence alleging that
his arrest was made in violation of the fourth and fourteenth amendments of the United States
Constitution. See U.S. Const., amends. IV, XIV. At the hearing on defendant’s motion, the State
presented the testimony of the two police officers involved in defendant’s Terry stop. The
officers’ accounts of the events leading to the stop, including their testimony regarding the
contents of a tip they received from an unidentified citizen that prompted them to stop defendant,
were substantially consistent and found to be credible by the trial court. Defendant does not
contest the substance of the officers’ testimony on appeal. The following account of the Terry
stop, and the events leading to it, was presented at the hearing on defendant’s motion to quash
arrest and suppress evidence.
¶5 Chicago police officer Patrick Kinney testified that about 10 p.m. on September 15, 2009,
he and his partner Officer Richard Antonsen, were on patrol in plain clothes and an unmarked
police vehicle within the Fourth District when they were flagged down by a man with whom
neither officer was familiar. Officer Kinney testified that he did not ascertain the man’s name
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and that the man indicated to the officers that he wished to remain anonymous. Officer Kinney
described the man as a “male black approximately in his 30s.” Officer Kinney testified the man
did not smell of alcohol and his demeanor was “normal.” During their approximately 30-second
conversation, the man told Officer Kinney that “a male black wearing a red shirt had just placed
a black handgun into a backpack and was *** walking eastbound on 80th Place from Exchange
[Avenue].” Officer Kinney did not ask the man how he knew about the person with the gun.
¶6 After speaking with the unidentified man, Officer Kinney, “within seconds,” relocated to
80th Place which was approximately a block and a half away. At the 2900 block of East 80th
Place, Officer Kinney observed four or five people in the area, including defendant, who was
wearing a red shirt, holding a backpack to the right side of his body and walking eastbound on
the sidewalk. Officers Kinney and Antonsen approached defendant for a field interview. As they
did so, Officer Kinney announced his office and defendant walked up the stairs leading to the
front porch of a residence. Officer Kinney followed defendant to the porch and attempted to do a
protective pat down of defendant’s person. Officer Kinney testified that he wanted to do a
protective pat down of defendant because of the information that was relayed to him that
defendant was in possession of a weapon.
¶7 As Officer Kinney reached for defendant’s waistband, defendant dropped the backpack
he was holding onto the porch. Officer Kinney testified that he had not started to pat down
defendant, before defendant dropped the backpack. The officer acknowledged that he prepared
an arrest report, detailing the events that happened on the porch, and admitted that in the report
he stated that he conducted a pat down of defendant’s person and that defendant dropped the
backpack while he was conducting the pat down. Officer Kinney testified that during the pat
down he intended to search defendant’s person and not the backpack.
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¶8 Officer Kinney stated that when the backpack hit the porch it made a “thud” sound that
was consistent with a steel object, such as a gun, inside the backpack. Officer Kinney also stated
that the thud was a sound he has heard before based on “people dropping guns” in his presence.
As the officer picked up the backpack, defendant grabbed it and they started to struggle over it.
Officer Kinney gained possession of the backpack and threw it to his partner, who was standing
below the porch near the sidewalk. As Officer Kinney attempted to detain defendant, he heard
Officer Antonsen say “gun.”
¶9 Officer Antonsen testified to substantially the same sequence of events as Officer
Kinney. Officer Antonsen added that he observed defendant walking eastbound on 80th Place
within minutes, “if not sooner,” of speaking with the unidentified man. After Officer Kinney
announced his office to defendant, the officer told defendant he was going to search him. Officer
Kinney did not say anything to defendant between announcing his office and informing
defendant that he was going to search him. Officer Antonsen stated that the porch defendant was
standing on was made of concrete and that it was a “landing” in front of a door with enough
space for three people to stand. Defendant dropped the backpack as Officer Kinney approached
him. When defendant did so, Officer Antonsen heard a “metal sound” like “something hard
hitting the ground.” Officer Antonsen stated that he was familiar with guns, had recovered
hundreds of guns, was on “the specialized unit for guns,” and that the sound he heard when
defendant dropped the backpack was consistent with a gun being inside the backpack. After
Officer Kinney gained possession of the backpack, he threw it to Officer Antonsen, who placed
the backpack on the ground, opened it and saw a handgun inside. Officer Antonsen said “gun”
upon seeing the weapon in the backpack.
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¶ 10 Following argument, the trial court denied defendant’s motion to quash arrest and
suppress evidence. In doing so, the court stated that “this is a close case” and found that, based
on the short period of time within which the officers observed defendant and corroborated the
unidentified man’s tip, which predicted defendant’s behavior, a pat down of defendant and a
search of his backpack would have been justified even if defendant did not drop the backpack. In
reaching this conclusion, the court stated that it believed the sequence of events as documented
in Officer Kinney’s arrest report that the officer was beginning to pat down defendant when
defendant dropped the backpack.
¶ 11 Defendant filed a motion to reconsider the denial of his motion to quash arrest and
suppress evidence. During the hearing on his motion, defense counsel argued that there was a
search performed in this case and that the officers did not have probable cause to perform the
search before or after defendant dropped the backpack. Counsel also pointed out to the court that
the porch in question was made of wood, not concrete as testified to by Officer Antonsen, and
that this contradicts the officer’s testimony that he heard a “metal sound” when defendant
dropped the backpack. In denying defendant’s motion to reconsider, the court stated that police
were justified in making a Terry stop based on the unidentified man’s tip, which was predictive
and the contents of which would not have been available to anyone. With regard to the porch
being made of wood, the court stated that it was not of such significance that it would have
changed the court’s ruling on defendant’s motion to suppress in light of Officer Kinney’s
testimony that the backpack made a “thud” sound when defendant dropped it and that it would
have made that sound on any surface.
¶ 12 At trial, Officer Kinney testified consistent with his testimony at the hearing on
defendant’s motion to suppress. Officer Kinney added that the unidentified man told the officers
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that he had observed a man place a handgun into a bag and directed the officers in the direction
of the man. The unidentified man described the perpetrator as a black male, wearing a red shirt
and holding a backpack. Officer Kinney denied that he patted down defendant before defendant
dropped the backpack, but acknowledged that in the arrest report he indicated that defendant
dropped the backpack during the pat down. After speaking with Officer Antonsen, Officer
Kinney learned that the gun in the backpack was a revolver loaded with six live rounds. Officer
Kinney also added that, as he tried to place defendant in custody, defendant fled through the
house and was not apprehended on the night in question.
¶ 13 Officer Antonsen testified consistent with his testimony at the hearing on defendant’s
motion to suppress. He added that, along with the gun, there was also an “application” bearing
defendant’s name inside the backpack. After recovering the gun, Officer Antonsen yelled “gun”
and released the ammunition from the cylinder of the gun. Officer Antonsen testified that
defendant was not arrested on the night in question, but that he encountered defendant on
September 21, 2011, and, after learning about an investigative alert for defendant, placed him in
custody.
¶ 14 The State introduced into evidence a certified copy of defendant’s 2006 conviction for
aggravated driving under the influence and then rested.
¶ 15 Samuel Moore, defendant’s friend, testified that at the time of defendant’s trial he was in
custody of the Illinois Department of Corrections. Moore stated that he and his cousin, Joshua
Jenkins, were walking towards defendant’s house when, about 15 feet away from the house, two
officers stopped them and patted them down. The officers told Moore and Jenkins to leave the
area and asked defendant to come down from the porch of his house. The officers then
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approached defendant, who was standing on the porch, and the officers and defendant started
arguing.
¶ 16 The trial court found defendant guilty of two counts of unlawful use or possession of a
weapon by a felon based on his possession of the firearm and ammunition. The court sentenced
defendant to five years’ imprisonment on the firearm count. In doing so, the court noted that
there was a finding of guilty on both counts and, without objection from either party, stated that a
sentence will be entered on the firearm count. Defendant appeals.
¶ 17 ANALYSIS
¶ 18 Before addressing defendant’s argument on appeal, we note that on September 12, 2013,
before the conclusion of defendant’s trial and nearly four years to the day of the Terry stop in
question, our supreme court issued its decision in People v. Aguilar, 2013 IL 112116. The
Aguilar court held that a portion of the Illinois aggravated unlawful use of a weapon statute,
which operated as an absolute ban on an individual’s right to possess a handgun for self-defense
outside the home, was facially unconstitutional under the second amendment of the United States
Constitution (U.S. Const., amend. II) and, thus, void ab initio. Aguilar, 2013 IL 112116, ¶¶ 19
21; People v. Blair, 2013 IL 114122, ¶ 28 (the effect of finding a statute facially unconstitutional
is to render it “void ab initio” and therefore incapable of being enforced). Following Aguilar, our
supreme court has reaffirmed its central holding of the statute’s facial unconstitutionality in two
unanimous opinions. See People v. Mosley, 2015 IL 115872, ¶ 24; and In re Jordan G., 2015 IL
116834, ¶ 7.
¶ 19 On appeal, defendant contends, without reference to Aguilar, that the trial court erred in
denying his motion to quash arrest and suppress evidence because police lacked reasonable
suspicion to justify a Terry stop based on an uncorroborated tip that a black male in a red shirt
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placed a gun in a backpack and was walking East on 80th Place. Defendant claims that because
the officers failed to ascertain the reliability of the anonymous tip before acting on it, they lacked
the reasonable suspicion necessary to justify the Terry stop. Defendant thus maintains that the
recovered gun must be suppressed as a fruit of an illegal stop and that this court should outright
reverse his conviction.
¶ 20 Review of a trial court’s ruling on a motion to suppress follows a two-part standard of
review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard, a reviewing court
will review the trial court’s findings of fact for clear error while giving due weight to any
inferences drawn from those facts by the fact finder. Id. As such, the factual findings made by
the court in connection with a motion to suppress will not be disturbed on appeal unless they are
against the manifest weight of the evidence. Id. A reviewing court, however, is free to undertake
its own assessment of the facts in relation to the issues presented and draw its own conclusions in
deciding what relief, if any, should be granted. Id. In doing so, a reviewing court may look to
trial testimony as well as the evidence presented at the hearing on the motion to suppress. People
v. Hopkins, 235 Ill. 2d 453, 473 (2009), citing People v. Stewart, 104 Ill. 2d 463, 480 (1984). We
review de novo the trial court’s ultimate legal ruling of whether the arrest should be quashed and
the evidence suppressed. Luedemann, 222 Ill. 2d at 542.
¶ 21 The United States and Illinois Constitutions guarantee citizens the right against
unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6.
“Reasonableness under the fourth amendment generally requires a warrant supported by
probable cause.” People v. Sanders, 2013 IL App (1st) 102696, ¶ 12. However, our supreme
court has recognized three types of police-citizen encounters that do not constitute an
unreasonable seizure. Luedemann, 222 Ill. 2d at 544. These encounters are: (1) arrests, which
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must be supported by probable cause; (2) a brief investigative stop, also known as a Terry stop;
and (3) encounters that do not involve coercion or detention and therefore do not implicate fourth
amendment interests. Luedemann, 222 Ill. 2d at 544.
¶ 22 The encounter relevant to the case at bar is a Terry stop. In Terry v. Ohio, 392 U.S. at 27,
the United States Supreme Court held that “an officer may, within the parameters of the fourth
amendment, conduct a brief, investigatory stop of a citizen when the officer has a reasonable,
articulable suspicion of criminal activity, and such suspicion amounts to more than a mere
‘hunch.’ ” During a Terry stop, an officer may temporarily detain an individual for questioning
where the officer reasonably believes the individual has committed, or is about to commit, a
crime. Terry, 392 U.S. at 21-22; Sanders, 2013 IL App (1st) 102696, ¶ 13.
¶ 23 To justify a Terry stop, officers must be able to point to specific and articulable facts
which, considered with the rational inferences from those facts, make the intrusion reasonable.
Sanders, 2013 IL App (1st) 102696, ¶ 14; People v. Rhinehart, 2011 IL App (1st) 100683, ¶ 14.
Although reasonable suspicion is a less stringent standard than probable cause, an officer’s
hunch or unparticularized suspicion is insufficient. People v. Lampitok, 207 Ill. 2d 231, 255
(2003). When determining whether an investigatory stop is reasonable, we rely on an objective
standard and view the facts from the perspective of a reasonable officer at the time of the stop.
Sanders, 2013 IL App (1st) 102696, ¶ 14. A decision to make a Terry stop is a practical one
based on the totality of the circumstances. Id.
¶ 24 A Terry stop may be initiated based on information received from a member of the
public. Sanders, 2013 IL App (1st) 102696, ¶ 15. Generally, a tip from a “concerned citizen” is
considered more credible than information from a paid informant or a person who provided the
tip for personal gain. Id. A tip from an anonymous person may be sufficient to justify a Terry
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stop provided the information bears some indicia of reliability. People v. Henderson, 2013 IL
114040, ¶ 26. If an unidentified person places their anonymity at risk by speaking to officers in
person we may consider this fact when weighing the reliability of the tip. Sanders, 2013 IL App
(1st) 102696, ¶ 26. The tip must be “ ‘reliable in its assertion of illegality, not just in its tendency
to identify a determinate person.’ ” Id., quoting Florida v. J.L., 529 U.S. 266, 272 (2000).
¶ 25 In this court, both parties focus on the reliability of the tip received by the officers.
Defendant argues that the tip was not sufficiently reliable to provide the officers with a
reasonable suspicion of criminal activity to justify a Terry stop, while the State argues that it was
reliable. Neither party addresses the impact of the holding in Aguilar on the case at bar, and this
issue was not raised in the trial court. In denying defendant’s motion to suppress and his motion
to reconsider, the court stated that the tip from the unidentified man was sufficient to justify a
Terry stop because its contents were not available to anyone, it was predictive in nature, and the
officers corroborated the tip in a short period of time. We begin our analysis by first, briefly
addressing the reliability of the tip received by the officers.
¶ 26 Here, we agree with the trial court that, based on the evidence presented, the tip was
sufficiently reliable to justify a Terry stop. The record shows that the unidentified man in this
case approached Officers Kinney and Antonsen in person and engaged in a face-to-face
conversation with the officers. In doing so, the man risked his anonymity and the chance that the
officers might identify him in the future. As such, the unidentified man in this case has a greater
resemblance to a citizen informant than an anonymous one. See Sanders, 2013 IL App (1st)
102696, ¶ 31. Moreover, the face-to-face conversation allowed Officer Kinney to observe the
man’s demeanor and determine the man’s credibility as he gave the tip to the officer. See Id.
Officer Kinney testified that the man did not smell of alcohol and that his demeanor was
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“normal.” Apparently, Officer Kinney found the man credible because the officer “within
seconds” relocated to the area where the man said defendant would be walking eastbound.
¶ 27 During his conversation with the officers, the man explained the basis of his knowledge,
and accurately described defendant’s appearance and defendant’s direction of travel. Officer
Kinney testified at trial that the unidentified man told the officers that he had observed a man
place a handgun into a bag and that the man was a black male, wearing a red shirt and holding a
backpack. The officers corroborated the tip “within seconds” because the distance between the
tip and the Terry stop was a “block and half.” Moreover, the tip in this case did provide some
predictive information through which the officers were able to corroborate the tip i.e. that
defendant would be walking eastbound on 80th Place. See Sanders, 2013 IL App (1st) 102696,
¶ 25 (tip was sufficient to justify a Terry stop where the informant spoke to the officer in person,
explained the basis of his knowledge, and accurately described defendant’s direction of travel).
This information, under the totality of the circumstances, was sufficiently reliable to allow
Officer Kinney to initiate a Terry stop. See Sanders, 2013 IL App (1st) 102696, ¶ 31.
¶ 28 However, our analysis cannot end here. Rather, the Terry stop in this case is valid only if
the contents of the tip, specifically, defendant’s possession of the handgun, provided the officers
with reasonable suspicion of criminal activity. There is no question that on September 15, 2009,
the date of the Terry stop, Illinois law completely prohibited the possession of a handgun in
public, if the gun was uncased, loaded, and immediately accessible at the time of the offense. See
720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). As such, given that defendant’s reported
conduct was illegal at the time, and that the tip was sufficiently reliable, the officers could
reasonably suspect that defendant was involved in criminal activity and were justified in
initiating a Terry stop.
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¶ 29 That said, following defendant’s Terry stop, that portion of the Illinois aggravated
unlawful use of a weapon statute, which banned the possession of a handgun in public and
formed the basis of the officers’ reasonable suspicion of criminal activity to justify the Terry
stop, was held to be facially unconstitutional by Aguilar and void ab initio. See Aguilar, 2013 IL
112116, ¶¶ 19-21. Therefore, while we agree that when the officers initiated the Terry stop they
had reason to believe that defendant was in violation of a law that was valid at the time, we must
nevertheless consider the significance of the fact that the statute has since been declared
unconstitutional if we are to resolve the ultimate question of whether defendant’s constitutional
rights were violated.
¶ 30 Post-Aguilar, a tip, such as the one here, that merely mentions a gun in defendant’s
possession is not sufficient, without any more information regarding defendant’s criminal
conduct, to provide officers with reasonable suspicion of criminal activity to justify a Terry stop.
Stated differently, the portion of the AUUW statute that justified the Terry stop at the time is no
longer valid and, thus, would not justify such a stop today because the reported conduct is no
longer criminal.
¶ 31 We have reviewed the record and have found no other basis for reasonable suspicion of
criminal activity to justify defendant’s Terry stop. The record shows that the officers were not
familiar with defendant prior to receiving the tip that he was in possession of a handgun. The tip
did not contain any information that defendant was involved in other criminal activity or whether
he had been issued a FOID card. Although defendant was later charged, in part, with violating
the FOID-card portion of the AUUW statute, this does not mean that the officers, at the time they
received the tip, had enough information for a reasonable suspicion of criminal activity to justify
a Terry stop. Moreover, the officers did not testify that they observed defendant committing a
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crime or that they had reason to believe that defendant was connected with any other crime
independent of his possession of the gun. As such, even after receiving the tip, the officers did
not have enough information for a reasonable suspicion of criminal activity that would justify a
Terry stop today. Therefore, a constitutional violation occurred in this case, and although it was
not considered a constitutional violation at the time, we cannot, post-Aguilar, find otherwise.
Accordingly, we conclude that the Terry stop in this case constituted an unreasonable seizure and
violated defendant’s constitutional rights.
¶ 32 Having so found, we next address whether the gun recovered as a result of the Terry stop
should be suppressed. When evidence is obtained in violation of the fourth amendment, the
exclusionary rule precludes the use of such evidence against a defendant in a criminal
proceeding. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974),
citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v.
Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The purpose of the exclusionary rule
is not to provide a constitutional right to an aggrieved party but, rather, to act as a deterrent
against improper conduct by government agents. United States v. Leon, 468 U.S. 897, 906, 104
S.Ct. 3405, 82 L.Ed.2d 677 (1984), citing Calandra, 414 U.S. at 348.
¶ 33 Given this purpose, the United States Supreme Court has created a “good-faith
exception” to the exclusionary rule, which allows the use of evidence where an officer is “acting
as a reasonable officer would and should act in similar circumstances” albeit on a subsequently
invalidated search warrant. Leon, 468 U.S. at 919-20. In Illinois v. Krull, the Supreme Court
extended the good-faith exception to encompass a situation where an officer acts in objectively
reasonable reliance on a statute authorizing warrantless administrative searches, despite the
statute ultimately being found to violate the fourth amendment. Illinois v. Krull, 480 U.S. 340,
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349-50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The Supreme Court has also ruled that the
exclusionary rule does not necessarily bar evidence obtained by police in a search based on a
violation of a law later invalidated as unconstitutional. See Michigan v. DeFillippo, 443 U.S. 31,
38-9, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).
¶ 34 However, in People v. Krueger, 175 Ill. 2d 60, 61 (1996), our supreme court declined to
adopt the Krull good-faith exception after finding that the Illinois Constitution barred its
application. Specifically, the Krueger court held that evidence obtained pursuant to a “no-knock”
statute, which it found violated the defendant's fourth amendment rights, may not be admitted at
trial under the good-faith exception to the exclusionary rule. Id. at 62-63, 75-76. In reaching this
conclusion, the Krueger court stated that if it were to recognize a good-faith exception to our
state exclusionary rule it would “provide a grace period for unconstitutional search and seizure
legislation, during which time our citizens’ prized constitutional rights can be violated with
impunity.” Id. at 75.
¶ 35 After Krueger, our supreme court issued its decision in People v. Carrera, 203 Ill. 2d 1,
16-17 (2002), in which it refused to apply the good-faith exception to the exclusionary rule based
on the void ab initio doctrine and its concern that, to do otherwise, would create a “grace period”
for unconstitutional search and seizure. In Carrera, Chicago police officers arrested the
defendant outside of the city of Chicago pursuant to an extraterritorial jurisdiction arrest statute
that was later declared unconstitutional and void ab initio. Id. at 3, 8, 16. The defendant filed a
motion to quash his arrest and suppress evidence, arguing the officers lacked authority to arrest
him outside of Chicago. Id. at 7. The circuit court denied the motion. Id. On appeal, this court
reversed the circuit court’s order and remanded for further proceedings. Id. at 9-10. The State
appealed, arguing, in relevant part, that the good-faith exception to the exclusionary rule should
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apply because the officers did not violate the defendant’s substantive constitutional rights when
effectuating the extraterritorial arrest. Id. at 13. The Carrera court acknowledged the State’s
argument, but elected to resolve the case “on narrow grounds,” finding that the void ab initio
doctrine dictated the conclusion it reached. Id. at 13-14.
¶ 36 In doing so, our supreme court in Carrera explained that a statute which is facially
unconstitutional is void ab initio and confers no right, imposes no duty and affords no protection.
Id. at 14. “It is as though no such law had ever been passed.” Id. As such, the Carrera court
refused to apply the good-faith exception to the defendant’s case, reasoning that to do so “would
run counter to *** void ab initio jurisprudence—specifically, that once a statute is declared
facially unconstitutional, it is as if it had never been enacted.” Id. at 16. Echoing the Krueger
court’s concern with a “grace period for unconstitutional search and seizure,” the Carrera court
explained that to give legal effect to the historical fact that the amendment existed when the
defendant was arrested “would effectively resurrect the amendment and provide a grace period
*** during which our citizens would have been subject to extraterritorial arrests without proper
authorization.” Id. The Carrera court declined to recognize such a grace period and held that an
arrest executed pursuant to a statute that is later found to be unconstitutional is unlawful, and
evidence seized as a result of that arrest is subject to the exclusionary rule. Id. at 16-17.
¶ 37 Here, while we recognize that defendant was the subject of a Terry stop, rather than an
arrest, we nevertheless find Carrera instructive and, based on the language therein, conclude that
the void ab initio doctrine precludes the application of the good-faith exception to the
exclusionary rule. As in Carrera, we decline to apply the good-faith exception in the present
case and thereby recognize the historical fact that the now invalidated portion of the AUUW
statute existed at the time of defendant’s Terry stop. Were we to do so, we too would effectively
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be resurrecting that portion of the AUUW statute and providing a grace period during which
individuals would have continued to be subject to Terry stops for violating that portion of the
statute that was invalidated by Aguilar. People v. Holmes, 2015 IL App (1st) 141256, ¶ 30,
appeal allowed No. 120407 (2016). Accordingly, we hold that defendant’s Terry stop, initiated
on the basis of reasonable suspicion of criminal activity pursuant to the now invalidated portion
of the AUUW statute, is unlawful and evidence seized as a result of the stop is subject to the
exclusionary rule.
¶ 38 In support of this conclusion, we note that this court, in Holmes, recently addressed a
similar issue and, based on the language in Carrera, reached a similar conclusion. Holmes, 2015
IL App (1st), ¶ 30. In Holmes, the defendant was arrested when a police officer observed a
revolver in his waistband. Id. ¶ 1. After placing the defendant under arrest, the officer discovered
that he did not have a valid FOID card. Id. The defendant was subsequently charged with two
counts of AUUW for carrying an uncased, loaded, and immediately accessible firearm, and two
counts of AUUW for carrying a firearm without a valid FOID card. Id. ¶ 5. Given our supreme
court’s decision in Aguilar, the State conceded that the two counts of AUUW based on the
defendant’s possession of an uncased, loaded, and immediately accessible firearm should be
dismissed and entered a nolle prosequi on those counts. Id.
¶ 39 The defendant then filed a motion to quash his arrest and suppress evidence with respect
to the two remaining AUUW counts, arguing that his arrest was unconstitutional because police
lacked probable cause to believe that he was committing a crime. Id. ¶ 6. The defendant noted
the decision in Aguilar and asserted that the good-faith exception to the exclusionary rule did not
apply because police were enforcing an unconstitutional statute. Id. In support of this assertion,
the defendant relied on Carrera. Id. The circuit court granted the defendant’s motion, finding
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that the officer lacked probable cause because he did not know whether the defendant had a valid
FOID card and was investigating the defendant for violating a law later found to be
unconstitutional and void ab initio. Id. ¶ 9. In so doing, the circuit court noted that if a statute is
void ab initio, it is as if it never existed and thus cannot give rise to probable cause. Id.
¶ 40 The State appealed, arguing that Carrera was distinguishable and that the circuit court
should have recognized a good-faith exception to the exclusionary rule because the officer was
operating under the law valid at the time of the defendant’s arrest and, thus, the defendant’s
fourth amendment rights were not violated. Id. ¶ 13. This court affirmed, relying on the language
in Carrera concerning the void ab initio doctrine. Id. ¶ 36-38. Specifically, this court in Holmes
found that the same concern with a “grace period” was implicated on the facts of the case before
it, where individuals would have continued to be subject to arrests for violating the portion of the
AUUW statute that was invalidated in Aguilar. Id., ¶ 30. We see no reason to depart from the
reasoning in Carrera and Holmes.
¶ 41 We briefly note that in Holmes, this court pointed out that, in granting the defendant’s
motion to suppress, the trial court stated that the defendant’s case was “kind of unfortunate
because the officer didn’t do anything wrong at the time” and the officer could have effectuated a
valid Terry stop and inquired right away whether the defendant had a FOID card. Id. ¶ 9. This
statement, made without reference to legal authority, implies that had the defendant answered in
the negative the officers could have effectuated a lawful arrest. Here, as mentioned, and as in
Holmes, the officers did not do anything wrong at the time of the Terry stop. However, as in
Holmes, the officers also did not inquire whether defendant had a FOID card and instead
proceeded to pat him down. While at the time, the officers were justified in doing so under the
then effective portion of the AUUW statute, that portion of the statute has since been declared
- 17 1-14-1040
void ab initio—“as if it had never been enacted”—and thus, having never been enacted, cannot
give rise to reasonable suspicion of criminal activity for defendant’s Terry stop. Given the
officers’ lack of reasonable suspicion, defendant’s Terry stop and seizure of the gun were
unconstitutional.
¶ 42 CONCLUSION
¶ 43 For the reasons stated, we reverse the order of the trial court denying defendant’s motion
to quash arrest and suppress evidence.
¶ 44 Reversed and remanded.
- 18 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LAMONT THOMAS,
Defendant-Appellant.
No. 1-14-1040
First District, FIFTH DIVISION
December 23, 2016
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Hon. Thomas M. Davy, Judge Presiding.
COUNSEL FOR APPELLANT Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
Patricia Mysza, Deputy Defender
OF COUNSEL: Benjamin A. Wolowski
COUNSEL FOR APPELLEE Kimberly M. Foxx, Cook County State’s Attorney, Chicago, IL 60602
OF COUNSEL: Alan Spellberg, John E. Nowak and Jessica R. Ball