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Appellate Court Date: 2017.02.14
15:09:16 -06'00'
People v. Thomas, 2016 IL App (1st) 141040
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LAMONT THOMAS, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-14-1040
Filed December 23, 2016
Rehearing denied January 20, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-18062; the
Review Hon. Thomas M. Davy, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Patricia Mysza, and Benjamin A. Wolowski, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and Jessica R. Ball, Assistant State’s Attorneys, of
counsel), for the People.
Panel 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
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 I) (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 II) (720 ILCS 5/24-1.6(a)(1),
(a)(3)(C) (West 2008)); within the city of Chicago (count III) (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 IV) (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 V) and ammunition (count VI)
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 testimonies of the two police officers involved in defendant’s Terry stop.
The officers’ accounts of the events leading to the stop, including their testimonies 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’ testimonies 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
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
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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.
¶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.
¶ 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.
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¶ 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 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 toward 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
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.
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¶ 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; 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
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, ¶ 13. 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
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. Id.
¶ 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,
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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. Id. 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.
Id. ¶ 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 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.’ ” Henderson, 2013 IL 114040, ¶ 26 (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
“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
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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 [a] 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 id. ¶ 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 id. ¶ 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.
¶ 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 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
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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 (1974) (citing Weeks v. United
States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (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 (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. (Internal quotation marks omitted.) Id. 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, 349-50 (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, 38-39 (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 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
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the State’s argument, but elected to resolve the case “on narrower 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 that 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 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 (Ill. Sept. 28, 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. Id. 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
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motion, finding 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 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.
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