People v. Thomas

2019 IL App (1st) 170474

Opinion

2019 IL App (1st) 170474

No. 1-17-0474

Opinion filed on March 19, 2019.

Modified upon denial of rehearing on May 14, 2019.

Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 15 CR 5636 ) MARKEESE THOMAS, ) The Honorable ) Steven G. Watkins, Defendant-Appellee. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶1 Defendant Markeese Thomas was charged with aggravated unlawful use of a weapon

(AUUW) after police observed defendant, while in the common area of an unlocked multiunit

apartment building, hand off a gun to his friend and then flee upstairs into an apartment unit.

Defendant filed a motion to quash his arrest and to suppress the evidence, which the circuit court

granted. The State now appeals, arguing that there was no fourth amendment violation since

defendant was not a resident of the apartment unit into which he fled and since the offense No. 1-17-0474

occurred in the common area of the building. The State further argues police had probable cause

for the arrest even without knowing that defendant lacked licenses under both the Firearm

Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01 et seq. (West 2014)) and

the Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2014))

and, regardless, defendant had abandoned the weapon before his arrest, thus precluding

application of the exclusionary rule. For the reasons to follow, we agree with the State that the

circuit court’s judgment must be reversed.

¶2 BACKGROUND

¶3 Defendant was charged with various counts of aggravated unlawful use of a weapon

following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in Chicago,

on March 25, 2015. The charges, in sum, asserted that defendant illegally possessed a handgun

while not on his land or in his home (or another person’s as an invitee) and without a valid

Firearm Owners Identification (FOID) card or concealed carry license. See 720 ILCS 5/24-1.6

(West 2014). 1

¶4 Defendant subsequently filed a motion to quash his arrest and suppress evidence illegally

seized. 2 He asserted he was illegally stopped absent reasonable suspicion and arrested without

probable cause and the items recovered were a direct result of this unlawful arrest. At the 1 As discussed in further depth later, in People v. Aguilar, 2013 IL 112116, ¶ 20, the supreme court held that on its face section 24-1.6(a)(1), (a)(3)(A), (d) of the aggravated unlawful use of a weapon statute, found in the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), violated the second amendment right to keep and bear arms because it prohibited carrying a firearm outside the home. Aguilar, however, did not vitiate the entire AUUW statute since the right to bear arms outside the home is still subject to meaningful regulation. Aguilar, 2013 IL 112116, ¶ 21. To that end, in People v. Mosley, 2015 IL 115872, ¶ 31, the supreme court recently upheld the constitutionality in the aggravated unlawful use of a weapon statute of the FOID card requirement in subsection (a)(3)(C) and the 21-and- older requirement in (a)(3)(I) for gun possession outside the home (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C), (a)(3)(I) (West 2014)). Here, the parties do not dispute the gun charges that were lodged in this case. 2 Although entitled “MOTION TO SUPPRESS EVIDENCE ILLEGALLY SEIZED,” the substance of defendant’s motion sought to quash his arrest and also to suppress evidence, and both matters were also the subject of the hearing.

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ensuing hearing, Officer Caribou, of the Chicago police, first testified that on the day in question,

he was on routine patrol with his partner, Officer Pena, in an unmarked car and in plainclothes,

although Officer Caribou wore his police vest bearing his star number, name, and the word,

“police.” Officer Caribou had worked that area many times and made multiple arrests for

narcotics, gangs, and drugs. He was patrolling due to the illegal activities of two rival gangs.

Around 7:30 p.m., as they drove slowly down Kenwood Avenue, from about five feet away, they

observed four or five males “loitering on the sidewalk in front” of the aforementioned apartment

building. At that point, Officer Caribou saw two of the males, later identified as defendant and

his friend Turner, “flee into the building.” At that moment, Officer Caribou did not observe

defendant holding a gun. On cross-examination, Officer Caribou specifically stated that

defendant looked in his direction just before fleeing. After curbing his vehicle, Officer Caribou

jumped out and followed the two men.

¶5 In response to defense counsel’s question, “Had you announced your office any time

prior to that?” Officer Caribou stated, “I am pretty sure we—we always say police.” He then

clarified that, although he did not announce his office while driving past the building, he did

announce it as he left his vehicle on the sidewalk and “gave chase” into the building.

Significantly, at that point defendant and Turner were already inside, and Officer Caribou lost

sight of them for several seconds, as the door closed behind them. The other members of the

group simply stood still on the sidewalk.

¶6 Subsequently, Officer Caribou “reopened the door,” then stepped inside the building to

what he described was the “common area.” The evidence thus indicates that the building was

unlocked, although Officer Caribou never explicitly stated this. Once inside, Officer Caribou

observed a hallway, and to the right was a first-floor stairwell, where defendant and Turner

3 No. 1-17-0474

stood. Just after the door closed behind Officer Caribou, both defendant and Turner looked in his

direction. Officer Caribou then saw that defendant had a firearm, which defendant promptly

handed to Turner before fleeing to the second floor. At that point, Officer Caribou “probably”

said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the

door behind him. Turner, who was “locked out,” froze and then threw the handgun on the

second-stair landing. Turner was detained and handed off to Officer Pena, who had just arrived

inside the building.

¶7 Officer Caribou recovered the loaded firearm, “a [.]380,” and returned to the locked

apartment unit. A female, whom Officer Caribou believed was defendant’s girlfriend, opened the

door. Officer Caribou arrested defendant, handcuffing him just outside the unit. Defendant was

transported to the police station, where he received Miranda warnings. Only after that did

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

¶8 In response to the State’s questions on cross-examination, Officer Caribou stated that he

had not stopped or detained defendant before defendant and Turner initially fled into the

building. At the police station, Officer Caribou also discovered that defendant resided at 7644

South Stewart Avenue.

¶9 The defense rested, and the State moved for a directed finding, arguing the defense had

not met its burden of showing defendant’s fourth amendment rights were violated. The State

argued the weapon was recovered in the common area of the apartment building, where

defendant had no privacy interest. Moreover, he was not a resident of the apartment unit, so he

had no “standing.” 3 Accordingly, there was no stop, search, or seizure of defendant that day.

3 The term “standing” is no longer used and has been replaced with privacy expectation. People v. Martin, 2017 IL App (1st) 143255, ¶ 19.

4 No. 1-17-0474

¶ 10 The defense countered that there was in fact a stop but no reasonable suspicion to support

it “from the inception.” That is, the officer’s several-second observation of the loitering group

did not amount to reasonable suspicion to pursue defendant. Defense counsel emphasized the

two individuals fled into the building even when officers had not yet announced their office.

There was no suggestion that defendant and Turner knew police were in the vehicle or fled at the

sight of the officers (a matter counsel conceded could lead to reasonable suspicion). The defense

noted it was a crime-ridden area where one might expect flight at the sight of a slow-moving

vehicle. In response to the judge’s query, counsel stated that defendant’s privacy rights began at

the point that defendant entered the building. The defense elaborated that defendant entered the

apartment unit and locked the door behind him, with his girlfriend eventually opening the door,

all of which suggested that “would be enough to establish” defendant “may be a resident of this

building.” The defense thus asserted that defendant had a reasonable expectation of privacy in

the building. The defense further argued that defendant was arrested prior to any knowledge as to

the lack of a FOID or concealed carry card, so there was no probable cause for the arrest, and no

exigent circumstances justifying entry into the building.

¶ 11 The court denied the State’s motion for a directed verdict, declaring, “[a]t this point the

petitioner has met [his] burden.” The State then rested. Closing arguments largely reflected

arguments already made. The State added that defendant had abandoned the weapon before

entering the apartment unit. According to the State, even assuming for the sake of argument that

defendant lived in the apartment, he still had no privacy interest in the building’s common area.

The State further argued that the police had probable cause to arrest defendant on seeing him

expose his gun in public and tender it to someone else, contrary to the concealed carry law.

Defense counsel, on the other hand, argued such actions occurring inside a residential apartment

5 No. 1-17-0474

complex did not give rise to probable cause for arrest without police first verifying whether

defendant had gun licenses. The defense argued probable cause, instead, arose at the station, and

the court agreed.

¶ 12 In conclusion, the court noted that there was no evidence of criminal activity from the

outset “to suggest that this defendant should be stopped in any way.” The court found that

outside the apartment complex, defendant was not committing any crime, and there was no

reason to believe he was committing a crime, yet police chased him anyway. The court stated

that it was during the “pursuit” that police observed a weapon. However, given the laws

permitting the public to possess guns outside the home via a FOID card and concealed carry

license, the court ruled that when the police observed defendant with a handgun, they did not

have probable cause to stop, seize, and then arrest defendant. The court noted that the gun was

not fully exposed but rather found that “a moment in time in your hand should be partially

concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun

recovered “subsequent to the violation of this defendant’s constitutional rights” had to be

suppressed under the exclusionary rule. The court granted defendant’s motion to quash his arrest

and suppress evidence.

¶ 13 ANALYSIS

¶ 14 The State appeals from the trial court’s order granting defendant’s motion to suppress. On

appeal, we give great deference to the trial court’s findings of fact when ruling on a motion to

suppress and will reverse those findings only if they are against the manifest weight of the

evidence, i.e., when the opposite conclusion is apparent or the findings are unreasonable,

arbitrary, or not based on the evidence. People v. Burns, 2016 IL 118973, ¶ 15; People v. Lomax,

2012 IL App (1st) 103016, ¶ 19. However, a reviewing court remains free to undertake its own

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assessment of the facts in relation to the issues presented and may draw its own conclusions

when deciding what relief should be granted. People v. Pitman, 211 Ill. 2d 502, 512 (2004). As

such, the trial court’s legal ruling on whether the evidence should be suppressed is reviewed

de novo. People v. Bonilla, 2018 IL 122484, ¶ 8. The question of law at issue in this case is

whether a fourth amendment violation occurred when the police entered an unlocked multiunit

apartment building without a warrant and, once inside the common area, observed defendant

hand his friend a gun just before both fled upstairs, with defendant entering his purported

apartment unit while the friend then discarded the gun. As set forth above, the State argues that

for a variety of reasons, defendant had no reasonable expectation of privacy in the apartment

building or apartment unit and there was no fourth amendment violation in this case.

¶ 15 The fourth amendment to the United States Constitution protects people from

unreasonable searches and seizures, as does the Illinois Constitution’s search and seizure

provision. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; People v. Smith, 152 Ill. 2d 229,

244 (1992). To prevail on a motion to suppress evidence at the trial level, the defendant bears the

burden of producing evidence and establishing a prima facie case that the search and seizure was

unreasonable. People v. Martin, 2017 IL App (1st) 143255, ¶ 18; People v. Carodine, 374 Ill.

App. 3d 16, 21 (2007). A prima facie showing means that the defendant has the primary

responsibility for establishing the factual and legal bases for the motion to suppress. People v.

Brooks, 2017 IL 121413, ¶ 22. However, once a defendant makes a prima facie showing of an

illegal search and seizure, the burden then shifts to the State to produce evidence justifying the

intrusion. Martin, 2017 IL App (1st) 143255, ¶ 18. However, the ultimate burden remains with

the defendant. Brooks, 2017 IL 121413, ¶ 22.

7 No. 1-17-0474

¶ 16 Reasonableness under the fourth amendment generally requires a warrant supported by

probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant

requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop (and

therefore necessarily seize) a person for temporary questioning if he reasonably believes the

person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91. Thus, a

“seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person

believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001). There are also

encounters between police and private citizens that involve no coercion or detention and thus do

not implicate the fourth amendment. People v. Estrada, 394 Ill. App. 3d 611, 616 (2009). In

other words, if there is no unreasonable government intrusion, there is no search or seizure

subject to the warrant clause of the fourth amendment. People v. Woodrome, 2013 IL App (4th)

130142, ¶ 19.

¶ 17 Initial Encounter: Reasonable Suspicion and Flight

¶ 18 We begin our step-by-step analysis with the police officers’ initial interaction with

defendant. As set forth, police drove slowly down the street in an unmarked vehicle in the early

evening hours. The area in question was known for narcotics, gangs, and drugs, and Officer

Caribou testified police were patrolling due to the activities of two rival gangs. As the officers

approached defendant and his cohort loitering on the sidewalk, defendant looked directly at the

officers, then defendant and Turner fled into the apartment building and closed the door. 4 At that

point, the police exited their vehicle, announced their office, and subsequently chased the men.

¶ 19 Although the trial court’s ruling suggests the police officers were unjustified at the outset

in chasing defendant and Turner, and defendant certainly set forth this argument below, an

4 At oral arguments, defense counsel suggested that the police officers were essentially a block away when they observed the loitering group. We find this interpretation contrary to the record, where Officer Caribou testified that he was about “five feet” from the group when he made his observations.

8 No. 1-17-0474

individual’s unprovoked flight on seeing police in an area known for crime is suggestive of

wrongdoing and may justify police suspecting that individual of criminal activity, which

warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People v.

Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113. That the defendant’s flight from

police is susceptible to an innocent explanation does not vitiate the officer’s right to detain that

individual to resolve any ambiguity. Wardlow, 528 U.S. at 125. The determination of reasonable

suspicion must be based on commonsense judgments and inferences about human behavior, and

due weight must be given to the reasonable inferences the officer is entitled to draw from the

facts in light of his experience. Id.; People v. Sorenson, 196 Ill. 2d 425, 433 (2001).

¶ 20 Here, the most rational inference from Officer Caribou’s testimony is that the police

presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable

suspicion. See People v. Jackson, 2012 IL App (1st) 103300, ¶ 23. While defense counsel

suggested that defendant and Turner could have mistaken the unmarked police vehicle for a

potential drive-by shooter, for example, this innocent explanation does not lessen the officers’

objective in resolving any ambiguity under the law. Although defendant bore the burden of

production, he did not himself testify at the hearing, so we do not have any evidence of his

subjective reason for fleeing. Cf. In re Mario T., 376 Ill. App. 3d 468, 473 (2007) (finding the

defendant established his prima facie case, where he testified that he was visiting his sister and

thus doing nothing unlawful at the time he was stopped and frisked). In fact, defendant and

Turner were the only two to flee among a group of four or five men, which weakens defense

counsel’s argument.

¶ 21 Regardless, defendant and Turner had already entered the building before the officers

even announced their office and chased the two men. Contrary to the trial court’s finding, there

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was no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where

there was no real encounter. See Thomas, 198 Ill. 2d at 112 (holding that a person must submit to

a show of authority before that show of authority can constitute a seizure).

¶ 22 Police Entry Into Unlocked Apartment Building: Privacy Expectation in Apartment Common Area

¶ 23 We turn to the next stage of the encounter, Officer Caribou’s entry into the unlocked

apartment building. Notably, the fourth amendment protects people, not places. Pitman, 211 Ill.

2d at 514. The extent to which the fourth amendment protects people may depend on where

those people are. Id. As such, a defendant who objects to the search of a particular area must

prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective

expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d at

22. An expectation of privacy must have a source outside the fourth amendment by reference to

concepts of real or personal property or to understandings that are recognized and permitted by

society. Pitman, 211 Ill. 2d at 514. A “search” for purposes of the fourth amendment occurs

when an expectation of privacy that society is prepared to consider reasonable is infringed.

Carodine, 374 Ill. App. 3d at 22.

¶ 24 The State argues there was no reasonable expectation of privacy in the common area of

the unlocked apartment building, which police were permitted to enter. The State further asserts

that it was in this common area that police observed defendant “committing a criminal offense”

and, as such, there was no “search” at issue. We are inclined to agree.

¶ 25 Historically, Illinois courts have found that there is no reasonable expectation of privacy

in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st)

143255, ¶ 20 (cases cited therein). In that sense, Smith, 152 Ill. 2d 229, is instructive. There,

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police officers entered an apartment building around 10 p.m. through an unlocked back door

accessible to other tenants, the landlord, social guests, and other invitees. Officers, while

standing in the hallway, then overheard a conversation coming from inside the defendant’s

apartment, wherein the defendant spoke with a raised voice and implicated himself in a murder

under investigation. Id. at 240. Our supreme court observed that the officers had entered an

unlocked common-area hallway where there was a diminished expectation of privacy and where

they had a legal right to be. The Smith court also observed that “the officers used no artificial

means to enhance their ability to hear defendant’s conversation.” Id. at 246. Based on all those

factors taken together, the court held no fourth amendment “search” was implicated because the

defendant did not have a reasonable expectation of privacy in his conversation. Id. at 245-46; see

also Carodine, 374 Ill. App. 3d at 24 (holding the defendant did not have an objective

expectation of privacy to the dryer vent because it was located in a common area where other

tenants of the building, the landlord, and members of the public had access; therefore, the

officer’s opening and reaching inside of the vent was not a fourth amendment “search”).

Building on Smith, it is well-settled that once an officer is legitimately on the property, in an area

impliedly open to the public, he may properly observe any “ ‘evidence lying about in the open.’ ”

People v. Redman, 386 Ill. App. 3d 409, 418-19 (2008). That is, a search does not occur when

officers observe what is in open view. Id.

¶ 26 While defendant relies on a recent supreme court case, Bonilla, 2018 IL 122484, 5 we find

it distinguishable. There, the police while acting on a tip regarding drug activity, entered the

defendant’s unlocked apartment building and then proceeded to the threshold of his third-floor

unit doorway, where a drug-detection dog alerted officers to the presence of narcotics. It was on

5 In his opening brief, defendant relied on the appellate court’s case in People v. Bonilla, 2017 IL App (3d) 160457, because the supreme court had not yet issued its opinion. Following its issuance, we granted defendant’s motion for leave to cite the supreme court’s Bonilla case as additional authority.

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this basis that officers obtained a search warrant. Id. ¶ 3. The supreme court concluded the

threshold of the apartment door constituted “curtilage” or an area immediately surrounding the

defendant’s home where his privacy expectations were most heightened, and this was a

constitutionally protected area. Id. ¶ 27. The use of a drug-sniff dog at the threshold absent a

warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment

rights. Id. ¶ 32. ¶

¶ 27 In reaching its conclusion, Bonilla relied on the well-established analytic framework in

Florida v. Jardines, 569 U.S. 1 (2013). 6 There, police officers entered the front porch of

defendant’s home and used a trained narcotics dog to sniff at the door for drug evidence. They

then used the positive drug-sniff to obtain a warrant and search the home. Id. at 3-4. The United

States Supreme Court held that, first, the officers’ investigation took place in a constitutionally

protected area, as the court found the front porch clearly constituted cartilage (id. at 6-7), and,

second, the conduct was an unlicensed physical intrusion not explicitly or implicitly permitted by

the homeowner (id. at 7-9). It was therefore a “search” in violation of the fourth amendment. Id.

at 11-12. Having disposed of the case under the “property-based” approach, the Jardines Court

stated there was no need to also consider the additional factor of whether the police violated the

defendant’s expectation of privacy as set forth in the Supreme Court’s earlier decision in Katz.

Id. at 11.

¶ 28 Bonilla similarly relied on Burns, 2016 IL 118973, which had “nearly identical” facts and

also employed the Jardines framework. Bonilla, 2018 IL 122484, ¶ 25. In Burns, our supreme

6 Bonilla added that the Supreme Court’s recent decision Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018), further supported its determination. Bonilla, 2018 IL 122484, ¶ 28. In Collins, police entered a partially concealed portion of a driveway abutting the defendant’s house to gather evidence (Collins, 584 U.S. at ___, 138 S. Ct. at 1668), and Collins concluded this physical intrusion invaded the defendant’s fourth amendment right in the item searched and in the curtilage of his home (id. at ___, 138 S. Ct. at 1670-71).

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court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s

apartment landing and door, located within a locked apartment building, violated the defendant’s

fourth amendment rights. Burns, 2016 IL 118973, ¶ 44. Burns noted the landing was clearly

marked “with limited use and restricted access” such that it, and therefore the door threshold,

constituted curtilage. Id. ¶ 39. The Burns court emphasized that the building entrances were

locked and that “this case [was] distinguishable from situations that involve police conduct in

common areas readily accessible to the public.” Id. ¶ 41.

¶ 29 Building on Burns, Bonilla nonetheless held that even the unlocked status of the

apartment building in its case was a distinction without difference, where the police clearly

entered the apartment unit’s curtilage (the door’s threshold) to conduct the dog-sniff for drugs.

The court further reasoned that the threshold was analogous to the front door in Jardines. In

holding this, Bonilla observed that Smith, discussed above, was distinguishable as it concerned a

“much different” scenario relating to a person’s “ ‘reasonable expectation of privacy in things

overheard by the police while standing in a common area of an unlocked apartment building.’ ”

Bonilla, 2018 IL 122484, ¶ 42 (quoting Burns, 2016 IL 118973, ¶ 58). That is, a drug-sniff

search was not the same as overhearing a conversation. Yet, Bonilla also clarified that Smith did

not categorically stand for the proposition that “tenants have no expectation of privacy in

common areas of either locked or unlocked apartment buildings.” (Emphases added.) Id. This

suggests that the analysis of what constitutes a constitutionally protected area and unlicensed

physical intrusion in a multiunit building must be more fact-driven and nuanced. See id.; see also

Burns, 2016 IL 118973, ¶ 98 (Garman, J., specially concurring) (noting that, not every police

entry into the common area of an apartment building will be a search, and further, that shared

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control over a multiunit building “directly impacts the license that may be granted to the police

or public”).

¶ 30 Viewing the particular facts in the present case, we conclude they are less like Bonilla

and more like Smith, as defendant failed to produce evidence showing the officers’ investigation

took place in a constitutionally protected area or where he had a reasonable expectation of

privacy or that it resulted in an unlicensed physical intrusion. Here, Officer Caribou entered the

unlocked apartment building at a reasonable hour and stepped into what he described was the

“common area” of the building. Our supreme court has expressly stated that the “term ‘common

area’ suggests an area left open for common or public use,” which necessarily negates any

expectation of privacy. People v. Janis, 139 Ill. 2d 300, 318 (1990); Smith, 152 Ill. 2d at 245-46.

Defendant did not present any testimony that the unlocked multiunit building was customarily

locked or had a “no trespass” sign posted outside. Although Officer Caribou did not testify in

detail about the building’s entryway and composition, the only logical inference from his

testimony is that he stood in a common area that was accessible to any other tenant, landlord,

delivery person, or member of the public. 7 As such, we cannot say his entry was unlawful. See

Smith, 152 Ill. 2d at 246.

¶ 31 We thus reject defendant’s contention on appeal that the location where Officer Caribou

observed the gun hand-off was curtilage, i.e., the area immediately surrounding and associated

with the home. The record evidence simply does not support that conclusion. 8 See United States

v. Dunn, 480 U.S. 294, 301 (1987) (identifying factors for determining curtilage); cf. Martin,

2017 IL App (1st) 143255, ¶¶ 3-5, 28 (noting police committed fourth amendment violation by

7 Police may even lawfully enter the curtilage as long as they do not exceed the scope of being there. That is, a police officer not armed with a warrant may approach a home and knock because that is “ ‘no more than any private citizen might do.’ ” Jardines, 569 U.S. at 8. 8 Defendant argues the trial court found the common area of this apartment building constituted “curtilage,” but we do not read such a factual finding in the record.

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reaching inside the outer doorframe to obtain incriminating evidence, where the defendant’s

mother specifically testified at the motion to suppress hearing that the space between the interior

and exterior doors of her two-flat building was private and not subject to trespassing with the

exterior door normally locked). That is, there was no evidence that the area where Officer

Caribou stood was clearly marked “with limited use and restricted access,” such that it could

constitute an extension of defendant’s home. Cf. Burns, 2016 IL 118973, ¶ 39 (majority opinion).

This similarly supports a conclusion that defendant had no privacy expectation in this particular

area.

¶ 32 As to any claim of a physical intrusion, this was not a preplanned goal to gather

incriminating evidence but the investigation of suspicious behavior in a crime-ridden

neighborhood. And, no extra-sensory aids were used to observe defendant’s hand-off of what

police later discovered was an unlicensed handgun. Thus, the police did not exceed the scope of

their license to be there. Accordingly, there was no fourth amendment search implicated simply

by the police officers’ entry into the common area of this unlocked building. That is because a

search implies prying into hidden places for concealed items, and it is not a search to observe

that which is in open view. People v. Bridges, 123 Ill. App. 2d 58, 67 (1970). Likewise, there

was no seizure of defendant’s person, since police had not then restrained defendant’s liberty.

Again, it was defendant’s burden to show there was a search or seizure that violated his fourth

amendment rights, and he did not fulfill that burden. See Brooks, 2017 IL 121413, ¶ 24.

¶ 33 Firearm Presence and Probable Cause to Arrest

¶ 34 Turning to the next stage of the encounter, just after the door closed behind Officer

Caribou, both defendant and Turner looked in his direction. Defendant handed Turner a firearm,

then they fled upstairs to the second floor. Officer Caribou, who wore a vest bearing his star

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number, name, and the word “police,” testified that he “probably” said “police freeze.”

Defendant went into an apartment unit on the second floor and closed the door behind him.

Turner, who was locked out, threw the handgun on the second-stair landing.

¶ 35 The State argues there was criminal activity afoot inside the apartment building, while

defendant denies this claim. Defendant argued below and, in response to the State’s appeal, now

maintains that the police lacked reasonable suspicion or probable cause to believe he was

committing a crime because possession of a gun is not per se illegal and the police failed to ask

defendant whether he had a valid FOID card or concealed carry license prior to arresting him.

¶ 36 In People v. Aguilar, 2013 IL 112116, ¶ 21, our supreme court specifically held that the

portion of the AUUW statute categorically banning use and possession of operable firearms for

self-defense outside the home was unconstitutional. As such, by now it is well-established that

“the second amendment right to keep and bear arms extends beyond the home,” although such a

right is subject to meaningful regulation. See id. ¶¶ 20-22. Under that meaningful regulation, in

order to possess a handgun, a person must carry a FOID card issued in his name by the state

police. 430 ILCS 65/2 (West 2014); People v. Williams, 266 Ill. App. 3d 752, 759-60 (1994) (a

person in possession of a firearm must have a FOID card on his person because mere ownership

of a FOID card by a person in possession of a firearm is insufficient to comply with the statute).

Handguns cannot be transferred to another person unless that person “displays” a currently valid

FOID card. 430 ILCS 65/3 (West 2014). A person desiring to transfer his firearm must first

contact the state police to verify that the transferee has a valid FOID card. Id.

¶ 37 In addition, the Concealed Carry Act permits an individual to carry a concealed firearm

on his person provided he has a valid FOID card. 430 ILCS 66/10, 25 (West 2014). A

“ ‘[c]oncealed firearm’ ” means “a loaded or unloaded handgun carried on or about a person

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completely or mostly concealed from view of the public.” (Emphasis added.) Id. § 5. As a result,

the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns in

view of the public. A person with a concealed firearm must at all times possess his concealed

carry license, unless he is on his own land or in his abode or legal dwelling (i.e., home) or acting

as an invitee on another person’s land or in his home. Id.§ 10(g); see also Black’s Law

Dictionary (10th ed. 2014) (defining “abode” as a “home; a place of residence” and defining

“dwelling-house” as “a residence or abode”). The parties have not cited, nor has our research

revealed, an Illinois case demonstrating that the common area of a multiunit apartment building

constitutes “land,” “abode,” or a “legal dwelling,” within the meaning of the Concealed Carry

Act. See People v. McClure, 218 Ill. 2d 375, 382 (2006) (to effect the legislature’s intent, courts

should interpret the language of a statute according to its plain and ordinary meaning). 9 Thus, a

person must possess his concealed carry license while in the common area of a multiunit

apartment building, assuming concealed carry is permitted on that private property. See 430

ILCS 66/65 (West 2014).

¶ 38 In addition to defendant’s aforementioned flight, here, defendant’s actions on seeing

police of handing his gun to another person in the common area of an apartment building, which

was not his land or home, and then fleeing 10 the scene, in totality, are facts that gave police

9 We decline defendant’s invitation to characterize the common area of an apartment building as a “private residence,” where it does not constitute the place where someone actually dwells or maintains his abode. See Black’s Law Dictionary (10th ed. 2014) (defining “residence” as the “place where one actually lives” or a “house or other fixed abode”); see also 720 ILCS 5/19-4(a-5) (West 2014) (noting, for purposes of proving criminal trespass to a residence, the term “residence” does not include common recreational areas or lobbies in a multiunit residential building or complex). 10 Section 10(h) of the Concealed Carry Act (430 ILCS 66/10(h) (West 2014)) provides that if an officer initiates an investigative stop of an individual, the officer may request his concealed carry license, and the individual must then disclose he is in possession of a concealed firearm. On the officer’s request, the individual must present the license. Id. Here, as stated, there was no stop because defendant was fleeing the scene the entire time. That, too, is a fact adding to probable cause to believe that defendant was not in possession of the proper gun licenses.

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probable cause to believe at the very least that defendant illegally possessed the gun. See People

v. Grant, 2013 IL 112734, ¶ 11 (noting probable cause to arrest exists when the totality of the

facts and circumstances known to the officer at the time are such that a reasonably cautious

person would believe that the suspect is committing or has committed a crime); see also

Williams, 266 Ill. App. 3d at 760 (the trier of fact could infer that the defendant who ran from

police and threw his gun into the garbage did not have a FOID card while fleeing from police).

The facts indicated a probability that defendant did not have the necessary gun licenses, that he

had violated the FOID Card Act and the Concealed Carry Act with an illegal transfer to another

individual, and that he had violated the Concealed Carry Act by exposing his gun in a semi-

public place. See People v. Wear, 229 Ill. 2d 545, 564 (2008). That Officer Caribou had made

multiple arrests for narcotics, gangs, and drugs in this neighborhood and was patrolling due to

the activities of rival gangs at the time of this incident added to the totality of the circumstances

justifying probable cause that defendant illegally possessed a firearm. See People v. Rainey, 302

Ill. App. 3d 1011, 1013 (1999) (noting, for probable cause, the totality of the circumstances

known to the officer at the time of the arrest includes the officer’s factual knowledge and his

prior law enforcement experience).

¶ 39 Thus, the existence of a possible innocent explanation, like defendant’s possession of the

required gun licenses, did not necessarily negate probable cause. See People v. Geier, 407 Ill.

App. 3d 553, 557 (2011). Likewise, the possibility that the owners of this residential apartment

complex condoned concealed carry on their property did not lessen the probability that defendant

did not in fact have the authority to possess a gun in the first place. 11 We note that to the extent

11 Defendant notes that section 65(a-10) of the Concealed Carry Act (430 ILCS 66/65(a-10) (West 2014)) states that an owner of private real property “of any type may prohibit the carrying of concealed firearms” on his property but must post the sign conspicuously at the entrance. Under section 65(a-10), this requirement does not apply to a “private residence.” Id. Defendant argues the absence of any

18 No. 1-17-0474

the trial court found the gun continued to be “partially concealed” when defendant handed it to

Turner, such a finding has no basis in the record and is an unreasonable inference from Officer

Caribou’s testimony and, thus, is against the manifest weight of the evidence.

¶ 40 We wish to emphasize that under the current legal landscape, police cannot simply

assume a person who possesses a firearm outside the home is involved in criminal activity.

Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from

the pant pocket of a person on a public street, alone as probable cause to arrest an individual for

illegal possession without first identifying whether the individual has the necessary licenses. We

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

as set forth above, mere gun possession was not the scenario that presented itself to police in this

case. The totality of the circumstances suggested criminal activity.

¶ 41 Abandonment of the Firearm and Arrest

¶ 42 Regardless, given the sequence of events in this case, we agree with the State that

defendant had abandoned his weapon before police even collected the gun and arrested

defendant. Notably, abandoned property is not subject to fourth amendment protection since no

one can have a reasonable expectation of privacy in an abandoned item. Pitman, 211 Ill. 2d at

519-20; see also Abel v. United States, 362 U.S. 217, 241 (1960) (noting there is nothing

unlawful in the government’s appropriation of abandoned property). As such, abandoned

property may be searched and seized without probable cause. People v. Sutherland, 223 Ill. 2d

187, 230 (2006). For abandonment, the State must demonstrate by a preponderance of the

evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the

evidence indicating such a sign existed in this case, by default, meant that police had to assume carrying a concealed firearm in this apartment complex was permissible and therefore defendant had the proper license. As set forth above, we reject defendant’s red-herring argument. Defendant also relies extensively on People v. Horton, but that case has been vacated with directions by the supreme court. People v. Horton, 2017 IL App (1st) 142019, vacated, No. 122461 (Ill. Nov. 22, 2017).

19 No. 1-17-0474

search officer’s position to believe that the defendant relinquished his property interest in the

item searched or seized. Pitman, 211 Ill. 2d at 520. As this is an objective test, it matters not if

the defendant desires to later reclaim the item. Id. What matters is the external manifestations of

the defendant’s intent as judged by a reasonable person who possesses the same knowledge

available to the police. Id. “ ‘We look at the totality of the circumstances, but pay particular

attention to explicit denials of ownership and to any physical relinquishment of the property.’ ”

Id. (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)).

¶ 43 Here, contrary to defendant’s suggestion, defendant did not thoughtfully hand his gun to

Turner for safekeeping with strict directions or indicate that he would later reclaim the gun. Cf.

Basinski, 226 F.3d at 837-38 (noting where the criminal entrusted his locked briefcase containing

incriminating evidence to his lifelong friend to hide it on the friend’s remote private property in a

secure state and to subsequently destroy the briefcase, the criminal did not intend to abandon the

briefcase). Rather, this is the quintessential abandoned property case, characterized by “a fleeing

defendant who relinquishes an object *** because discarding the item might make it easier for

him to later claim that he never possessed it.” Id. at 837. In this case, defendant physically

relinquished his property to Turner, while knowing police were in hot pursuit, and then shut

Turner out of defendant’s purported apartment unit. Defendant thus exhibited he did not wish to

be caught in possession of the gun. Turner then discarded the gun in an area where anyone could

have retrieved it. The total circumstances indicate a reasonable person in Officer Caribou’s

position would believe that defendant had relinquished his possessory interest in the gun that

police later seized. It was more likely true than not that defendant abandoned the handgun.

¶ 44 Because no search or seizure occurs when police take hold of an abandoned item, the

validity of the arrest is irrelevant. See People v. Hoskins, 101 Ill. 2d 209, 220 (1984); People v.

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Grant, 38 Ill. App. 3d 62, 68 (1976); Bridges, 123 Ill. App. 2d at 67. That is, the evidence here

was obtained prior to and independent of defendant’s arrest, and as such, the arguments of

counsel as to the legality of the arrest merit no further consideration. See Bridges, 123 Ill. App.

2d at 67. Accordingly, the trial court’s conclusion that the gun was the “fruit of the poisonous

tree” was demonstrably incorrect. See Johnson, 237 Ill. 2d at 92 (in order for evidence obtained

from an illegal arrest to be excluded, there must be some causal nexus between the illegal police

activity and the disputed evidence). In truth, as the State concurred at oral argument, this

scenario is more akin to a situation where there is no fruit from an “unplanted tree.” See Burns,

2016 IL 118973, ¶ 47 (describing the fruit-of-the-poisonous-tree metaphor).

¶ 45 Regardless, where the offense can be said to have been committed in the presence of an

officer, it has generally been held that the officer may enter the premises without a warrant for

the purpose of making a warrantless arrest. People v. Eichelberger, 91 Ill. 2d 359, 369 (1982);

see also Wear, 229 Ill. 2d at 571 (noting an officer’s warrantless nonconsensual entry into the

defendant’s residence was excused under doctrine of hot pursuit, where at the very least the

officer had probable cause to arrest at the threshold of the defendant’s home). Given that

defendant’s actions provided police with probable cause to believe he was committing a felony

in their presence, the officers rightfully entered defendant’s alleged apartment unit to make a

warrantless arrest, even assuming the apartment unit was defendant’s and his “girlfriend” did not

lawfully consent to the police entering. See Wear, 229 Ill. 2d at 571.

¶ 46 Based on the foregoing, defendant abandoned his handgun without implicating a fourth

amendment search or seizure. Alternatively, police acquired probable cause to sustain

defendant’s arrest in the apartment unit after observing him hand off the gun and flee. As noted

throughout this case, it was defendant’s initial burden to show a prima facie case of illegal search

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and seizure, and he failed. See Martin, 2017 IL App (1st) 143255, ¶ 18; see also People v.

Relwani, 2019 IL 123385, ¶ 18 (noting that a prima facie case is “ ‘[a] party’s production of

enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor’ ”

(quoting Black’s Law Dictionary 1310 (9th ed. 2009))).

¶ 47 Defendant’s Expectation of Privacy in the Apartment Unit

¶ 48 Finally, even assuming police conducted a search or seizure in violation of defendant’s

fourth amendment rights, defendant would fare no better because he failed to establish a

reasonable expectation of privacy in the actual apartment unit and, thus, in the building itself.

The fourth amendment’s constitutional safeguards are personal protections that may not be

vicariously asserted and, thus, not every aggrieved defendant can seek to exclude evidence

allegedly obtained in violation of the fourth amendment. People v. Ervin, 269 Ill. App. 3d 141,

146 (1994). Again, the defendant bears the burden of establishing that he held a reasonable

expectation of privacy, i.e., one that society is prepared to recognize as reasonable, in the place

searched or the property seized. Id. Factors for determining a reasonable expectation of privacy

include whether the defendant was legitimately present in the area searched, his possessory

interest in the area or property seized, his prior use of the area searched or property seized, his

ability to control or exclude others’ use of the property, and his subjective expectation of

privacy. Pitman, 211 Ill. 2d at 520-21.

¶ 49 Here, defense counsel noted defendant had entered the apartment unit, locking the door

behind him, and the woman inside (who was his supposed girlfriend) eventually reopened the

door for the police. Defense counsel thus implicitly argued that defendant maintained a

possessory interest in the apartment unit and the ability to control or exclude others from the

22 No. 1-17-0474

property. The trial court credited this argument as establishing defendant’s reasonable

expectation of privacy.

¶ 50 The State now argues this evidence was insufficient, especially where it showed

defendant did not reside at that address and his relationship with the woman who answered the

door was merely assumed. Defendant counters that, with the trial court’s finding, the burden of

production then shifted to the State. He argues the State, however, failed to rebut the evidence

and is now “trying to game the system” and engaging in “prejudicial sandbagging” by raising the

matter on appeal. We disagree.

¶ 51 In addition to the above factors, it is well-established that while an overnight guest in a

home may claim the protection of the fourth amendment, one who is merely present with the

consent of the householder may not. Minnesota v. Carter, 525 U.S. 83, 90 (1998); People v.

Williams, 186 Ill. App. 3d 467, 472 (1989) (“Merely because the defendant is occasionally on the

premises as a guest or invitee, and is on the premises at the time of the allegedly illegal search,

does not confer standing.”). In Ervin, for example, this court held that the defendant’s weekly

presence as a guest in his ex-wife’s home was insufficient to establish a reasonable expectation

of privacy, where he did not reside there, was not even a daily visitor, did not store clothing

there, and did not spend nights there. Ervin, 269 Ill. App. 3d 141. This was in spite of him listing

her address on his driver’s license and other identification. See also People v. Parker, 312 Ill.

App. 3d 607, 613 (2000) (noting, in Illinois, the storage of personal effects and other indicia of

residence demonstrate an expectation of privacy in non-overnight guests); Williams, 186 Ill.

App. 3d at 471 (concluding the defendant had no reasonable expectation of privacy in his

girlfriend’s apartment where he did not live there, spent only one night a week there, did not take

meals or keep clothes there, and had his mailing address elsewhere).

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¶ 52 The evidence in this case established defendant’s presence in and access to the apartment

unit, but it did not establish whether the apartment was itself locked before he entered, how often

he was in the apartment, whether he planned to stay there for more than a brief period of time, or

whether he kept any possessions there. The evidence therefore was insufficient to demonstrate he

had a reasonable expectation of privacy in the actual apartment unit and in the apartment

building itself. To the extent the trial court found otherwise, its finding was against the manifest

weight of the evidence. The record also reveals that the State argued in its motion for a directed

finding the issue of defendant’s privacy interest in the unit and the matter was not waived. In any

event, this particular issue does not warrant remand for a continuation of the suppression hearing

because, as stated, there was no fourth amendment search or seizure implicated. Thus, defendant

cannot ultimately succeed on a motion to suppress.

¶ 53 CONCLUSION

¶ 54 For the reasons stated, we reverse the judgment of the circuit court granting defendant’s

motion to quash his arrest and suppress evidence. We remand the case for further proceedings

consistent with this order.

¶ 55 Reversed and remanded.