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Illinois Appellate Court Protects Second and Fourth Amendments

An Illinois appellate court has upheld the Fourth and Second Amendments. They did so rather apologetically.  The case was decided on 31 March of 2017, but the events involved occurred in 2011.

When you read the entire case two distinctive versions of events are discerned. Neither version would justify the police actions. That is why the conviction was overturned. Here is what both sides seem to agree on:

An unmarked police car is slowly driving through a poor black neighborhood. A man and a woman are standing on the porch of a row house. Another man is standing a couple of feet off of the porch with his back to the street, talking to them. Two police officers are in the unmarked car.One police officer is scanning the neighborhood. The other is driving. They drive past the house. The police passenger tells the driver to stop the car. At about the same time, the person standing off of the porch quickly ducks into the house and locks the door.

The police call for backup. After five to six minutes, backup arrived and the police have obtained keys to the house. The two initial officers unlock the door, and search the house. Inside, they find two men. In one of the bedrooms, they find a semi-automatic handgun hidden under a mattress. The handgun was not listed as stolen. Evidence was not allowed showing the legal owner of the handgun. A resident of the house testified that the handgun belonged to his brother, who lived in the house with him. From illinoiscourts.gov:

After the suppression hearing, but before trial, the State orally moved to preclude Horton from introducing evidence regarding the gun’s ownership and whether the gun was stolen. Horton sought to introduce a document from the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms Explosives National Tracing Center naming the owner and showing that the weapon was not stolen.

The man who ducked into the house had two prior convictions for non-violent felonies in “1998 and 2003 for possession of a controlled substance with intent to deliver”.  He was not a resident of the house.

Here are some items that were not agreed on.

One of the critical points was whether the officer actually saw a gun or not before entering the house.

The passenger police officer (Hummons) said he saw a bulge in the waistband of the defendant, and that he glimpsed a “metallic object” as the subject briefly turned, as the police car passed the house. The bulge and the “metallic” object were not mentioned to his partner, nor were they included in the initial incident report or the arrest report.

I found the following assertion disturbing, but the court did not comment on it.

The passenger police officer said he found a set of keys on the floor of the porch near where the woman was sitting. The man and woman were detained in the police car while the officers called for backup. They were searched before being put in the car.

If an officer finds a set of keys, does that give him the authority to enter your house? As a former officer, I find it more likely that the keys were found in the man or woman’s pockets, but we do not have testimony to that effect.

Most cases such as this would be plea bargained. But this case was taken to a jury trial, and then appealed.  The Second Division Appellate Court of Illinois, First District, made the correct decision. From illinoiscourts.gov:

[*P1] Chicago police officers, in their mission to “serve and protect,” must remove from the city’s streets illegal guns, which claim hundreds of lives each year and imperil the public’s safety and security. Presumably acting on that laudable desire, an officer had a hunch, based on seeing “a metallic object” in Markell Horton’s waistband, that Horton might have a handgun and pursued him. Eventually, police found a handgun hidden under a mattress in a bedroom where they found Horton, and he was charged with possession. But changes in Illinois law (in part mandated by United States Supreme Court rulings protecting the right to keep and bear arms) now hold that it is not illegal to carry a concealed handgun, as long as certain procedures are followed.

[*P2] As judges, we are stuck between a hammer and the anvil. On the one hand, we are ever mindful of, and horrified by, the level of gun violence that continues to plague the City of Chicago. We feel confident in saying that all members of the judiciary wish for reformative solutions. But we also are mindful of our limited role in a constitutional system. We cannot sidestep or disregard instruction from both the United States and Illinois Supreme Courts to achieve a specific outcome. When we hold that precedent dictates the result here, it is not because we are naïve, or “soft on crime.” On the contrary, it is because we must follow, not rewrite, the established law and the facts in evidence.

[*P3] We now turn to the specifics of Horton’s appeal. Horton argues four issues: (i) the trial court improperly denied his motion to quash arrest and suppress evidence; (ii) the trial court improperly barred him from introducing registration and ownership evidence of the weapon, both before and after the State “opened the door” to the evidence; (iii) reasonable doubt; and (iv) ineffectiveness of trial counsel. In addition, this court ordered supplemental briefs on the issue of probable cause to pursue Horton “in view of the rulings in District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 741 (2010); People v. Aguilar, 2013 IL 112116; and People v. Burns, 2015 IL 117387.”

[*P4] We hold that the trial court improperly denied Horton’s motion to quash arrest and suppress evidence. The probable cause to pursue Horton was based on the officer’s belief that Horton possessed a gun in violation of the unlawful use of a weapon statute (720 ILCS 5/24 1.1(a) (West 2010)), later found unconstitutional on its face and void ab initio. Aguilar, 2013 IL 112116; Burns, 2015 IL 117387. As a result, the search and seizure of the gun was unlawful and the trial court erred when it denied Horton’s motion to quash his arrest and suppress the evidence.

As a gun owner, it is distressing that so little attention was paid to the actual owner of the firearm. It seems that the owner was a resident  of the house that was raided. It appears that he followed the rules in obtaining and keeping the firearm. Was the pistol returned to him? It seems highly unlikely. The costs for obtaining a court order from a judge, requiring the police to return the pistol, would be far more than the pistol was worth. Moreover, finding a judge in Chicago who would be willing to make such an order is highly problematic.

California used to be notorious for this sort of “legalized theft”. It took several lawsuits to force the California legislature to create a system for legal gun owners to recover firearms that had been impounded.  Many police departments around the country still follow a sometimes spoken rule: they never return firearms without a court order to do so.

Perhaps this case will help bolster the rule of law in Chicago. It is a step in the correct direction.

©2017 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch

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