People v. McGhee

2020 IL App (3d) 180349

Opinion filed December 3, 2020
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-18-0349
v. ) Circuit No. 16-CF-805
)
ANTONIO McGHEE, ) Honorable
) Norma Kauzlarich
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice O’Brien concurred in the judgment and opinion.
Justice Holdridge dissented, with opinion.
____________________________________________________________________________

OPINION

¶1 Defendant, Antonio McGhee, appeals his convictions for unlawful use or possession of

weapons by a felon (UUWF) and armed habitual criminal (AHC). Defendant argues that (1) the

Rock Island circuit court erred in denying his motion to suppress evidence after police officers

searched a locked glove compartment in a vehicle he was driving, and (2) his Iowa conviction

for second degree burglary was not a proper predicate offense for the charge of AHC. We affirm

in part, reverse in part, and remand.

¶2 I. BACKGROUND
¶3 Defendant was charged with UUWF (720 ILCS 5/24-1.1(a) (West 2016)). The State later

added the charge of AHC (id. § 24-1.7(a)). That charge alleged that defendant knowingly

possessed a firearm after having been twice convicted of burglary, a forcible felony. The

information indicated that one of defendant’s prior burglary convictions was a 2009 Illinois

conviction and the other was a 2010 Iowa conviction.

¶4 Defendant filed a motion to suppress a gun recovered in a search of a vehicle he had been

driving. Defendant alleged that the gun was discovered in a locked glove compartment.

Defendant argued that the search of the glove compartment was illegal because the officers did

not have a warrant, he did not consent, and there was no probable cause to search the glove

compartment.

¶5 A hearing was held on the motion to suppress. Officer Steven Mumma testified that he

and Officer Jonathan Shappard conducted a traffic stop on a vehicle after learning from another

officer that it had committed a traffic violation. There were four people inside the vehicle.

Defendant was the driver. While Mumma was still inside the squad car, he could see the front

seat passenger looking around and reaching down between his feet several times. Mumma later

said that this movement was consistent with putting something in the glove compartment.

¶6 When Mumma approached the vehicle, he observed that the front seat passenger had an

open bottle of beer in his hand. He was drinking it while Shappard talked to defendant. Mumma

also saw another open bottle of beer on the floor between the passenger’s feet. The beer was still

cold. Defense counsel asked Mumma if the movement he had earlier observed from the

passenger could have been consistent with placing the beer between the passenger’s feet.

Mumma said that could have been part of it, but there was a lot of movement.

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¶7 Mumma and Shappard had everyone exit the vehicle. Two other officers arrived and

stood with the four occupants of the vehicle. Mumma and Shappard searched the vehicle for

additional open containers of alcohol. Mumma explained that once he observed open containers

of alcohol, he believed there was probable cause to search the vehicle for more evidence of that.

They found a plastic bag, which had been between the passenger’s feet. It contained three or four

unopened bottles of Modelo beer. The bottles were not in a six-pack container.

¶8 The officers searched the glove compartment, which was in the same area Mumma saw

the passenger reaching to when the vehicle stopped. Based on the dimensions of the glove

compartment, a bottle of beer could have only been stored in the glove compartment on its side.

Defense counsel asked Mumma what he would be looking for in the glove compartment as far as

an open container of alcohol given the dimensions of the glove compartment. Mumma replied,

“These bottles could be resealed as far as the caps being screwed back on.” The officers found a

revolver and a large amount of counterfeit currency in the glove compartment. Mumma could

not recall anyone giving them consent to search the glove compartment. Mumma believed that

Shappard had placed handcuffs on defendant before the end of the search. The other passengers

were handcuffed once the officers found the gun.

¶9 After the testimony, the parties agreed that the glove compartment was locked before the

officers searched it.

¶ 10 The court issued a written order denying the motion to suppress. The court cited United

States v. Ross, 456 U.S. 798, 823 (1982) for the proposition that an individual’s expectation of

privacy in a vehicle and its contents does not survive if there is probable cause to believe that the

vehicle is transporting contraband. The court reasoned:

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 “In this case the officers had probable cause to search the vehicle once they

observed the open alcohol within the passenger’s compartment of the vehicle.

That probable cause allowed them to search anywhere in the vehicle that an open

can of beer could have been, which included the locked glove compartment.”

¶ 11 Defendant filed a motion to dismiss the AHC charge. Defendant stated that his prior Iowa

conviction was for burglary in the second degree. Defendant argued that this did not constitute a

forcible felony under Iowa law. The court denied the motion.

¶ 12 The matter proceeded to a bench trial. Over defense counsel’s objection, the court

admitted a certified copy of defendant’s 2010 Iowa conviction for second degree burglary. The

court also took judicial notice of the fact that defendant was convicted of burglary in a 2009

Illinois case.

¶ 13 Mumma testified that, on the evening of the incident, he and Shappard conducted a traffic

stop on a vehicle after another officer reported that the vehicle committed a traffic violation. As

they were pulling the vehicle over, Mumma noticed furtive movements from the front seat

passenger, who he later determined to be Brushey Pugh. Pugh moved back and forth and reached

down in the area of his feet. The movements Pugh was making were consistent with trying to

hide something. Mumma did not see the driver make any movements toward Pugh or the glove

compartment.

¶ 14 The officers approached the vehicle. Defendant was driving, Pugh was in the front

passenger seat. Pugh had “what appeared to be two open containers of Modelo beer.” He was

actively consuming one of the beers at the time the officers approached. Mumma and Shappard

had everyone exit the vehicle, and they searched the vehicle for more open containers of alcohol.

The officers located two open containers of Modelo beer and a few closed bottles of alcoholic

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 beverages on the front passenger-side floorboard. On cross-examination, defense counsel asked

Mumma, “And [Pugh] had a six pack, probably with two missing, of beer between his legs?”

Mumma responded, “Correct.”

¶ 15 Mumma noticed that the glove compartment was locked. Shappard left to ask defendant

for the key. The officers eventually retrieved a key and were able to open the glove

compartment. The key that they used to open the glove compartment was on a key chain that was

in the ignition at the time of the stop. The officers found a gun and a bundle of counterfeit

currency inside the locked glove compartment. Mumma testified that four individuals were taken

into custody as a result of the incident. There were at least five officers on the scene. Mumma

identified the actual gun that he recovered from the vehicle. The gun was eventually admitted

into evidence.

¶ 16 Shappard testified that, on the evening of the incident, he encountered defendant while

conducting a traffic stop. When Shappard activated the lights on his squad car, he saw the front

seat passenger reach forward. His head moved up and down, and it appeared that he was trying

to hide something. Shappard approached the vehicle. Defendant was the driver of the vehicle,

and Pugh was the front seat passenger. Mumma advised Shappard that the passenger had an open

container of alcohol. Shappard testified that Pugh had two open bottles of Modelo beer in his

hands. There was a shopping bag on the floor of the vehicle with four more sealed beers. They

were in a six pack.

¶ 17 Shappard and Mumma had defendant and his three passengers exit the vehicle. There

were additional officers on the scene who assisted them. Defendant shut the vehicle off, took the

keys, and stepped out of the vehicle. Defendant was very cooperative at that point. Shappard

searched the vehicle and learned that the glove compartment was locked. He asked defendant for

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 the keys to the glove compartment. Defendant became uncooperative and refused to give

Shappard the keys. Shappard put defendant in handcuffs and retrieved the keys from his pocket.

When asked if he physically placed defendant under arrest, Shappard stated, “I detained him,

yes.” Shappard testified that he used the same key that had been in the ignition to open the glove

compartment. He found a firearm and a large amount of currency inside.

¶ 18 The parties stipulated that Pugh, the front-seat passenger in the vehicle during the

incident, was taken into custody after the traffic stop. At the jail, a black key was found inside

Pugh’s right shoe. It was later determined that the key unlocked the doors of the vehicle and

glove compartment in which the gun was found.

¶ 19 Matthew Durbin testified that he was an assistant public defender. He was assigned to

represent Pugh on charges that arose out of the incident. Pugh gave Durbin a letter allegedly

written by defendant. Durbin spoke with defendant, and defendant indicated he was willing to

testify at Pugh’s trial. Defendant indicated to Durbin that the gun was his. The court admitted the

notarized letter into evidence. The letter stated that the gun belonged to defendant.

¶ 20 Defendant testified that, on the evening of the incident, he was driving a vehicle that he

had borrowed from his sister. The gun that was introduced into evidence did not belong to him,

and he had never seen it. Defendant did not know how Pugh obtained a key to the glove

compartment. Defendant testified that he wrote the letter that was given to Durbin, but the

statements in the letter were not true. He claimed that he owned the gun in the letter because he

was receiving threats from gang members at the jail.

¶ 21 The court found defendant guilty of both offenses.

¶ 22 Defense counsel filed a motion to reconsider the guilty verdict arguing that the trial

evidence was insufficient to prove defendant guilty beyond a reasonable doubt, defendant’s Iowa

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 conviction for second degree burglary was not a forcible felony under Illinois law, and the

confession letter should not have been admitted into evidence.

¶ 23 The court permitted defense counsel to withdraw after defendant claimed that he had

been ineffective. The court appointed new counsel to represent defendant at sentencing. The

court eventually allowed defendant to represent himself.

¶ 24 As a self-represented litigant, defendant filed a posttrial motion and an amended posttrial

motion, which argued, among other things, that the court should have granted the motion to

suppress and that any evidence obtained as a result of the search of the glove compartment must

be suppressed. Defendant also noted that additional testimony presented at the trial was not

presented at the suppression hearing.

¶ 25 Defendant filed a brief in support of his posttrial motion. Defendant stated that the

officers testified at the trial that all the beers in the six pack had been accounted for before they

searched the glove compartment. Defendant noted that this evidence had not been presented at

the suppression hearing and argued that the court would have likely ruled in his favor if it had

heard this evidence. Defendant also noted that the keys to the glove compartment were taken

from his person.

¶ 26 At the hearing on defendant’s posttrial motion, defendant argued that there was evidence

presented at the trial that was not presented at the suppression hearing. Specifically, defendant

stated that the court did not get to hear evidence at the suppression hearing that the key that

opened the glove compartment was taken from him and that it was in the ignition the whole time.

Defendant also noted that the court did not hear evidence at the suppression hearing that the

officers “found all the liquor or the six pack container.”

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¶ 27 The court denied the amended posttrial motion. The court sentenced defendant to 10

years’ imprisonment for AHC. The UUWF count merged.

¶ 28 II. ANALYSIS

¶ 29 A. Motion to Suppress

¶ 30 Defendant argues that the circuit court erred in denying his motion to suppress the gun

found in the locked glove compartment. Defendant contends that the officers’ search of the

locked glove compartment for open containers of alcohol was not justified because it was not

reasonable to believe that open containers of alcohol would be found in the glove compartment

where the officers had already accounted for all six bottles from the package. We find that the

court properly denied defendant’s motion to suppress because the officers had probable cause to

search the glove compartment.

¶ 31 “A search conducted without prior approval of a judge or magistrate is per se

unreasonable under the fourth amendment, subject only to a few specific and well-defined

exceptions.” People v. Bridgewater, 235 Ill. 2d 85, 93 (2009). Relevant to this appeal, these

exceptions include (1) the automobile exception and (2) a search incident to arrest. See id.;

People v. James, 163 Ill. 2d 302, 312 (1994). When reviewing a ruling on a motion to suppress

evidence, we will reverse the factual findings of the circuit court only if they are against the

manifest weight of the evidence. Bridgewater, 235 Ill. 2d at 92. However, we review de novo the

circuit court’s legal ruling as to whether the evidence should be suppressed. Id.

¶ 32 Defendant frames his argument on appeal as an argument that the search was unlawful

because the search incident to arrest exception to the warrant requirement did not apply.

However, defendant’s brief also contains some discussion of probable cause to search and

authority related to the automobile exception. The State’s brief contains extensive citations to

8
 authority concerning the automobile exception in support of its argument that the search of the

vehicle was justified as a search incident to arrest. The circuit court’s written order indicated that

the court denied the motion to suppress upon finding that the automobile exception, rather than

the search incident to arrest exception, applied. The substance of defendant’s arguments as to

why the court erred in denying the motion to suppress—namely, that the search of the locked

glove compartment was unreasonable based on the circumstances known to the officers at the

time of the search—apply to both exceptions. Accordingly, we consider both exceptions to the

warrant requirement in our analysis.

¶ 33 1. Automobile Exception

¶ 34 We first consider whether the search of the locked glove compartment was justified under

the automobile exception to the warrant requirement. “Under the automobile exception, law

enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to

believe that the automobile contains evidence of criminal activity that the officers are entitled to

seize.” James, 163 Ill. 2d at 312. “To establish probable cause, it must be shown that the totality

of the facts and circumstances known to the officer at the time of the search would justify a

reasonable person in believing that the automobile contains contraband or evidence of criminal

activity.” People v. Hill, 2020 IL 124595, ¶ 23.

“Probable cause deals with probabilities, not certainties. [Citation.] It is a

flexible, commonsense standard that ‘does not demand any showing that such a

belief be correct or more likely true than false.’ [Citation.] Therefore, probable

cause does not require an officer to rule out any innocent explanations for

suspicious facts. [Citation.] Instead, it requires only that the facts available to the

officer—including the plausibility of an innocent explanation—would warrant a

9
 reasonable man to believe there is a reasonable probability ‘that certain items may

be contraband or stolen property or useful as evidence of a crime.’ ” Id. ¶ 24

(quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

The scope of a warrantless search under the automobile exception “is defined by the object of the

search and the places in which there is probable cause to believe that it may be found.” Ross, 456

U.S. at 824.

¶ 35 We find that the search of the locked glove compartment for open containers of alcohol

was justified under the automobile exception because the officers had probable cause to search

the locked glove compartment for open containers of alcohol. Under section 11-502(a) of the

Illinois Vehicle Code (625 ILCS 5/11-502(a) (West 2016)), “no driver may transport, carry,

possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a

highway in this State except in the original container and with the seal unbroken.” At the

suppression hearing, Mumma testified that he observed the front seat passenger had one open

bottle of beer in his hand and another between his feet. At that point, the officers had probable

cause to believe that the vehicle contained evidence of the offense of illegal transportation of an

open container of alcohol. Under the automobile exception, the officers were permitted to search

any part of the passenger compartment of the vehicle where there was probable cause to believe

that open containers of alcohol could be found, including the locked glove compartment. See

Ross, 456 U.S. at 824. Notably, Mumma testified that an open bottle of beer that had been

resealed could fit in the glove compartment on its side. Mumma also testified that he observed

the front seat passenger make movements that were consistent with placing something in the

glove compartment.

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¶ 36 We reject defendant’s argument that it was unreasonable for the officers to believe that

open containers of alcohol would be found in the locked glove compartment because (1) all of

the bottles of beer in the six pack had been accounted for before they searched the glove

compartment and (2) any liquid inside an open container of alcohol would have spilled all over

the interior of the vehicle if it were hidden in the glove compartment on its side. 1 The officers

were not obligated to assume that no additional open containers of alcohol other than the six

pack of beer were present in the vehicle. There could have been open containers of types of

alcohol other than beer in the vehicle as well. Also, Mumma testified that the bottles of beer he

observed could have been resealed by having the cap screwed back on and would have fit in the

glove compartment on their sides.

¶ 37 We also reject the position taken by the dissent that the locked glove compartment was

not part of the passenger area of the vehicle because it was locked and the only key known to the

officers at the time of the search was in the ignition of the running car. The record contains no

information as to when the glove compartment was locked or whether a key was necessary to

initially lock the glove compartment. The glove compartment was directly in front of Pugh and

within his reaching distance. Under these circumstances, the officers had probable cause to

believe that the locked glove compartment was part of the passenger area of the vehicle such that

any open containers of alcohol stored within it would have been contraband.

¶ 38 2. Search Incident to Arrest

1
We note that Mumma testified at the suppression hearing that the unopened beers that the
officers found in the vehicle were not part of a six pack container, but he and Shappard both indicated
during their trial testimony that the beers were part of a six pack container. Defendant filed a posttrial
motion seeking reconsideration of the court’s suppression ruling based, in part, on the presentation of this
additional evidence at trial. Accordingly, we may consider evidence presented at trial as well as at the
suppression hearing in considering defendant’s argument on appeal. See People v. Gill, 2018 IL App (3d)
150594, ¶ 76.

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¶ 39 Having found that the search of the locked glove compartment was justified under the

automobile exception, we need not consider whether it was also permissible under the search

incident to arrest exception to the warrant requirement. However, we will briefly address this

exception as well. Under the search incident to arrest exception, police officers may conduct a

warrantless search of a vehicle incident to the recent arrest of an occupant when: “(1) the arrestee

is unsecured and within reaching distance of the vehicle’s passenger compartment at the time of

the search; or (2) officers reasonably believe evidence relevant to the crime of arrest may be

found in the vehicle.” Bridgewater, 235 Ill. 2d at 94-95; see also Arizona v. Gant, 556 U.S. 332,

343 (2009). The parties agree that the first prong of the search incident to arrest exception does

not apply. Therefore, the parties only dispute the second prong: whether the officers reasonably

believed that evidence relevant to the offense of illegal transportation of alcoholic liquor could

be found in the locked glove compartment.

¶ 40 As a threshold matter, in order for the search incident to arrest exception to apply to the

officers’ search for open containers of alcohol, there must have been a valid arrest for the offense

of illegal transportation of alcoholic liquor. See Bridgewater, 235 Ill. 2d at 94-95; People v.

Arnold, 394 Ill. App. 3d 63, 68 (2009). Defendant does not explicitly argue that he was arrested

for this prior to the search of the glove compartment. The State takes the position that defendant

was under arrest at the time of the search but does not address whether defendant was under

arrest for the offense of illegal transportation of alcoholic liquor.

¶ 41 However, assuming that the arrest component of the search incident to arrest exception

was satisfied, we find that the officers reasonably believed evidence relevant to the offense of

transporting an open container of alcohol would be found in the glove compartment. See supra

¶¶ 35-37.

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¶ 42 B. Predicate Forcible Felony for AHC

¶ 43 Defendant argues that his conviction for AHC should be reversed because his Iowa

conviction for burglary in the second degree was not a proper predicate offense. First, defendant

argues that the legislature did not intend for out-of-state convictions to be considered under the

definition of “forcible felony” in section 2-8 of the Criminal Code of 2012 (Code) (720 ILCS

5/2-8 (West 2016)). Alternatively, defendant contends that if the legislature did intend for out-of-

state convictions to be considered, the State failed to prove that the Iowa offense of second

degree burglary constituted a forcible felony in Illinois. Specifically, defendant argues that the

offense of burglary in Iowa may be based on conduct that would not qualify as a burglary in

Illinois, and the State failed to present evidence concerning the underlying facts of defendant’s

Iowa conviction. We find that, even assuming that the legislature intended for out-of-state

convictions to qualify as forcible felonies, the State failed to prove beyond a reasonable doubt

that defendant’s Iowa conviction for second degree burglary was a forcible felony under Illinois

law.

¶ 44 Defendant’s argument presents questions of both statutory interpretation and sufficiency

of the evidence. In considering a challenge to the sufficiency of the evidence, “ ‘the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In order to prove defendant guilty of

AHC, the State was required to prove that defendant (1) received, sold, possessed, or transferred

a firearm and (2) was previously convicted of two forcible felonies as defined in section 2-8 of

the Code. 720 ILCS 5/24-1.7(a) (West 2016). The question of whether the State proved beyond a

13
 reasonable doubt that defendant’s Iowa conviction for second degree burglary constituted a

forcible felony requires us to interpret section 2-8 of the Code.

¶ 45 “The primary goal in construing a statute is to ascertain and give effect to the intent of the

legislature.” People v. Belk, 203 Ill. 2d 187, 192 (2003). “Legislative intent is best ascertained by

examining the language of the statute itself.” Id. “In determining the plain meaning of the statute,

we consider the statute in its entirety and are mindful of the subject it addresses and the

legislative purpose in enacting it.” People v. Baskerville, 2012 IL 111056, ¶ 18. “Where the

language is clear and unambiguous, there is no need to resort to aids of statutory construction.”

Belk, 203 Ill. 2d at 192. Also, if a statute is clear and unambiguous, “courts cannot read into the

statute limitations, exceptions, or other conditions not expressed by the legislature.” People v.

Glisson, 202 Ill. 2d 499, 505 (2002). “[C]ourts may assume that the legislature did not intend

absurdity, inconvenience or injustice to result from legislation.” Id. Construction of a statute is a

question of law which we review de novo. Belk, 203 Ill. 2d at 192.

¶ 46 Section 2-8 of the Code (720 ILCS 5/2-8 (West 2016)) provides:

“ ‘Forcible felony’ means treason, first degree murder, second degree murder,

predatory criminal sexual assault of a child, aggravated criminal sexual assault,

criminal sexual assault, robbery, burglary, residential burglary, aggravated arson,

arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great

bodily harm or permanent disability or disfigurement and any other felony which

involves the use or threat of physical force or violence against any individual.”

¶ 47 Upon examining the plain language of the forcible felony statute and its legislative

purpose, we find that the legislature intended the enumerated offenses in the forcible felony

statute to refer to Illinois offenses. All of the enumerated offenses listed in the definition of

14
 “forcible felony” bear the names of Illinois offenses that are subsequently defined in the Code.

See id. §§ 9-1, 9-2, 10-1, 10-2, 11-1.20, 11-1.30, 11-1.40, 12-3.05, 18-1, 19-1, 19-3, 20-1, 20-

1.1, 30-1. The purpose of the statute is to define the term “forcible felony,” as used throughout

the Code. See id. § 2-0.5. Given this context, we hold that the legislature intended for the

enumerated offenses listed in the forcible felony statute to have the meaning later ascribed to

them in the Code. See id. §§ 9-1, 9-2, 10-1, 10-2, 11-1.20, 11-1.30, 11-1.40, 12-3.05, 18-1, 19-1,

19-3, 20-1, 20-1.1, 30-1.

¶ 48 Thus, while the forcible felony statute makes no explicit provision concerning whether

convictions from foreign jurisdictions may also constitute forcible felonies in Illinois, we find

that if the legislature intended for offenses from foreign jurisdictions to constitute forcible

felonies, the foreign conviction would either have to (1) satisfy the elements of one of the

enumerated Illinois offenses, as defined in the Code, or (2) fall within the residual clause—i.e.,

“any other felony which involves the use or threat of physical force or violence against any

individual.” Id. § 2-8. We need not decide whether a conviction from a foreign jurisdiction may

constitute a forcible felony to resolve this case, as we find that the State failed to show that

defendant’s Iowa conviction for second degree burglary fell within either of these two categories.

¶ 49 1. Enumerated Felony of Burglary

¶ 50 First, the State failed to show that defendant’s Iowa conviction for second degree

burglary satisfied the elements of the Illinois offense of burglary. Under section 19-1(a) of the

Code, “[a] person commits burglary when without authority he or she knowingly enters or

without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle,

railroad car, or any part thereof, with intent to commit therein a felony or theft.” Id. § 19-1(a).

15
¶ 51 A person commits the Iowa offense of second degree burglary in either of the following

situations:

“a. While perpetrating a burglary in or upon an occupied structure in

which no persons are present, the person has possession of an explosive or

incendiary device or material, or a dangerous weapon, or a bodily injury results to

any person.

b. While perpetrating a burglary in or upon an occupied structure in which

one or more persons are present, the person does not have possession of an

explosive or incendiary device or material, nor a dangerous weapon, and no

bodily injury is caused to any person.” Iowa Code § 713.5 (2010).

The Iowa Code defines burglary as follows:

“Any person, having the intent to commit a felony, assault or theft therein,

who, having no right, license or privilege to do so, enters an occupied structure,

such occupied structure not being open to the public, or who remains therein after

it is closed to the public or after the person’s right, license or privilege to be there

has expired, or any person having such intent who breaks an occupied structure,

commits burglary.” Id. § 713.1.

¶ 52 Under Iowa law, an “occupied structure” includes “any building, structure, appurtenances

to buildings and structures, land, water or air vehicle, or similar place adapted for overnight

accommodation of persons, or occupied by persons for the purpose of carrying on business or

other activity therein, or for the storage or safekeeping of anything of value.” Id. § 702.12. A

structure meeting this description is considered an “occupied structure” whether or not a person

is actually present within the structure. Id.

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¶ 53 The Iowa Supreme Court has held that “[a] thing is an appurtenance ‘when it stands in

relation of an incident to a principal and is necessarily connected with the use and enjoyment of

the latter.’ ” State v. Pace, 602 N.W.2d 764, 770 (Iowa 1999) (quoting State v. Baker, 560

N.W.2d 10, 13 (Iowa 1997)). In Baker, 560 N.W.2d at 13-14, the Iowa Supreme Court held that

a driveway to a residence satisfied the definition of occupied structure. The court reasoned that a

driveway was an appurtenance to a building or structure because “[d]riveways are closely

associated with, and connected to, buildings and structures.” Id. at 13. The court also found that

driveways were “occupied by persons for the purpose of carrying on business or other activities,

or used for the storage or safekeeping of anything of value.” Id. at 14. The court reasoned:

“Driveways are often occupied by persons for numerous types of activities, such as sporting

activities, children playing, vehicle washing, cookouts, and countless other activities. Also,

driveways are commonly used for the storage or safekeeping of things of value, namely

automobiles, boats, and trailers.” Id.

¶ 54 Upon examining the Illinois offense of burglary as defined in the Code and the Iowa

offense of second degree burglary as defined pursuant to Iowa law, we find that an Iowa

conviction for second degree burglary would not necessarily satisfy the elements of the Illinois

offense of burglary. A person could be convicted of second degree burglary in Iowa if he or she,

without authority, entered a driveway where no persons were present while carrying a dangerous

weapon with the intent to commit a felony, theft, or assault. See Iowa Code §§ 702.12, 713.1,

713.5 (2010); Baker, 560 N.W.2d at 13-14. Entering a driveway under these circumstances

would not constitute a burglary in Illinois. Section 19-1(a) of the Code (720 ILCS 5/19-1(a)

(West 2016)) requires as an element of the offense of burglary that an individual knowingly

17
 enter, or without authority remains in, a building, housetrailer, watercraft, aircraft, motor vehicle,

railroad car, or any part thereof.

¶ 55 Thus, an Iowa conviction for second degree burglary is not necessarily equivalent to an

Illinois conviction for burglary based on the elements of the offenses alone. The State presented

no evidence concerning the underlying facts of defendant’s Iowa conviction for second degree

burglary. Accordingly, the State failed to show that defendant’s Iowa conviction for second

degree burglary constituted a conviction for burglary within the meaning of section 19-1(a) of

the Code and the forcible felony statute. See id. §§ 2-8, 19-1(a). As a result, defendant’s Iowa

conviction for second degree burglary may only serve as a predicate forcible felony for the

offense of AHC if it falls within the residual clause of the forcible felony statute.

¶ 56 In coming to this conclusion, we acknowledge that Illinois courts have held that, where a

defendant is charged with AHC based on prior convictions for enumerated offenses in the

forcible felony statute, the State is only required to prove the fact of the prior convictions of the

enumerated offenses. People v. McGee, 2017 IL App (1st) 141013-B, ¶ 22; People v. Perkins,

2016 IL App (1st) 150889, ¶ 7. These courts have held that “[n]othing in the armed habitual

criminal statute requires a court to examine a defendant’s underlying conduct in commission of

the enumerated offenses in order to find that the State has sustained its burden of proof.” Perkins,

2016 IL App (1st) 150889, ¶ 7; McGee, 2017 IL App (1st) 141013-B, ¶ 22. However, these cases

have only considered situations where a defendant was charged with AHC based on prior Illinois

convictions for enumerated offenses. Perkins, 2016 IL App (1st) 150889, ¶¶ 1-2; McGee, 2017

IL App (1st) 141013-B, ¶¶ 4-6. In these circumstances, the mere fact of the conviction is enough

to show that the elements of the Illinois offenses were satisfied. However, where, as here, the

State seeks to use a conviction from a foreign jurisdiction as a predicate forcible felony, the State

18
 must show that the foreign conviction satisfied the elements of one of the enumerated forcible

felonies, as defined in the Code, or fell within the residual clause.

¶ 57 2. Residual Clause

¶ 58 Having found that the State failed to prove that defendant’s Iowa conviction for second

degree burglary constituted a burglary within the meaning of the Illinois forcible felony statute,

we now consider whether defendant’s second degree burglary conviction fell within the residual

clause of the forcible felony statute. Under the residual clause, a forcible felony includes “any

other felony which involves the use or threat of physical force or violence against any

individual.” 720 ILCS 5/2-8 (West 2016). Illinois courts have held that crimes fall under the

residual clause in two situations. People v. Schultz, 2019 IL App (1st) 163182, ¶ 21.

¶ 59 First, if one of the elements of the offense is a specific intent to carry out a violent act,

then every instance of the offense necessarily qualifies as a forcible felony. Id. In such a

situation, it is not necessary to consider the specific circumstances of the underlying offense. Id.

Rather, the court conducts “an analysis of the elements of the underlying offense to determine

whether proof of those elements necessarily entails the use or threat of force or violence against

an individual.” People v. Sanderson, 2016 IL App (1st) 141381, ¶ 6.

¶ 60 The Iowa offense of second degree burglary does not satisfy these requirements. Proof of

the elements of second degree burglary does not necessarily entail the use or threat of force or

violence against an individual. While the State contends that the possession of an explosive or

incendiary device or deadly weapon shows the contemplation of and willingness to use force,

proof of this is only required under subsection (a) of the second degree burglary statute. Iowa

Code § 713.5(a) (2010). Notably, an additional element of subsection (a) is that no other person

was present in the occupied structure at the time of the burglary. Id. The State did not present any

19
 evidence as to which subsection defendant was convicted under. While the second degree

burglary statute requires that the defendant have the intent to commit a felony, theft, or assault

(see id. §§ 713.1, 713.5), a theft or felony is not always a violent act.

¶ 61 We reject the State’s argument that the threat of physical force or violence is inherent

even if defendant did not intend violence while committing a burglary. The State notes that the

United States Supreme Court held in Quarles v. United States, 587 U.S. ___, ___, 139 S. Ct.

1872, 1879 (2019) (quoting Taylor v. United States, 495 U.S. 575, 588 (1990)), that the rationale

for categorizing burglary as a violent felony was its “ ‘inherent potential for harm to persons.’ ”

The Quarles Court further reasoned: “Burglary is dangerous because it ‘creates the possibility of

a violent confrontation between the offender and an occupant, caretaker, or some other person

who comes to investigate.’ ” Id. at ___, 139 S. Ct. at 1879 (quoting Taylor, 495 U.S. at 588).

However, the fact that legislatures have categorized burglary as a violent felony due to the

inherent potential for violence and the possibility of a violent confrontation does not mean that

proof of the elements of burglary necessarily entails the use or threat of force or violence, as

required under the first prong of the residual clause. See Sanderson, 2016 IL App (1st) 141381,

¶ 6.

¶ 62 “The second way a felony can qualify as a forcible felony, even if a crime does not have

violent intent as an element, is if the State proves that ‘under the particular facts of this case,’ the

defendant contemplated the use of force and was willing to use it.” Id. ¶ 7 (quoting Belk, 203 Ill.

2d at 195). Here, the State presented no evidence concerning the underlying facts of defendant’s

conviction for second degree burglary. Accordingly, the second prong of the residual clause was

not satisfied.

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¶ 63 Thus, even assuming that out-of-state convictions may constitute forcible felonies under

section 2-8 of the Code (720 ILCS 5/2-8 (West 2016)), the State has failed to prove that

defendant’s Iowa conviction for second degree burglary constituted a forcible felony.

Accordingly, defendant’s conviction for AHC must be reversed because the State failed to prove

that defendant had prior convictions for two forcible felonies, as required under section 24-1.7(a)

of the Code (id. § 24-1.7(a)). See People v. Lucas, 231 Ill. 2d 169, 178 (2008) (“Due process

requires that to sustain a conviction of a criminal offense, the State must prove a defendant guilty

beyond a reasonable doubt of the existence of every element of the offense.”).

¶ 64 III. CONCLUSION

¶ 65 We conclude that the circuit court properly denied the motion to suppress evidence of the

gun because the search of the locked glove compartment was justified under the automobile

exception. We further conclude that the State failed to prove defendant guilty beyond a

reasonable doubt of the offense of AHC because it failed to prove that defendant’s Iowa

conviction for second degree burglary met the definition of “forcible felony” under Illinois law.

Accordingly, we affirm the denial of the motion to suppress, reverse defendant’s conviction for

AHC, and remand the matter for sentencing on the merged offense of UUWF.

¶ 66 Affirmed in part and reversed in part.
¶ 67 Cause remanded.

¶ 68 JUSTICE HOLDRIDGE, dissenting:

¶ 69 I would reverse the judgment of the circuit court denying the motion to suppress.

Accordingly, I respectfully dissent.

¶ 70 First, I would find that the search of the locked glove compartment for open containers of

alcoholic beverages was not justified under the automobile exception to the warrant requirement

because the officers did not have probable cause to believe that they would find contraband in

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 the locked glove compartment. At trial, both Mumma and Shappard testified that the opened and

unopened bottles of beer they found in the front seat were part of a six pack container and that all

the bottles had been accounted for prior to the search of the locked glove compartment. 2 Also,

the occupants of the vehicle made no effort to conceal the open bottles of beer from the officers.

In fact, Pugh was drinking from one of the bottles while the defendant spoke to an officer.

Additionally, at the time of the search, the only key to the glove compartment that the officers

were aware of had been in the ignition of the running vehicle at the commencement of the traffic

stop. Under these circumstances, a reasonable person would not be justified in believing that the

occupants of the vehicle resealed an open container of an alcoholic beverage, placed it on its side

in the glove compartment, and locked the glove compartment with a key that was also used to

operate the vehicle in order to conceal the open container from the police.

¶ 71 Moreover, based on the facts known to the officers at the time of the search, an open

container of alcoholic liquor in the locked glove compartment would not have been contraband

because the locked glove compartment was not part of the “passenger area” of the vehicle. Under

section 11-502(a) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-502(a) (West

2016)), a driver may not transport open containers of alcoholic liquor within the “passenger

area” of a motor vehicle. The Vehicle Code does not define “passenger area.” However, the

following guidance from the Illinois Attorney General is helpful in defining this term:

“[W]hether a particular area of a motor vehicle is a passenger area is a factual

determination which will have to be made in each particular instance. I am of the

2
As the majority noted, this court may consider evidence presented at trial that was not presented
at the suppression hearing because the defendant filed a posttrial motion seeking reconsideration of the
court’s suppression ruling based, in part, on the presentation of additional evidence at trial. See Gill, 2018
IL App (3d) 150594, ¶ 76.

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 opinion, however, that in general for purposes of section 11-502 of [t]he ***

Vehicle Code, the term ‘passenger area’ means that portion of a motor vehicle

which is primarily designed for or which is adapted or devoted to the carrying of

passengers. This would include any area of the motor vehicle which is readily

accessible to the driver or a passenger.” 1976 Ill. Att’y Gen. Op. No. S-1142, at 2,

https://illinoisattorneygeneral.gov/opinions/1976/S-1142.pdf

[https://perma.cc/RAU5-AWFY].

¶ 72 In the instant case, the locked glove compartment was not adapted or devoted to the

carrying of passengers. Based on the information known to the officers at the time of the search,

the locked glove compartment also was not readily accessible to the driver or a passenger while

the vehicle was on a highway prior to the stop. According to Shappard’s testimony, the key used

to open the locked glove compartment was in the ignition of the running vehicle at the time he

and Mumma initiated the traffic stop. This was the only key to the glove compartment that the

officers were aware of at the time of the stop. It would have been impossible for the defendant or

a passenger to use this key to store or retrieve an open container of alcohol in the glove

compartment while the defendant was driving the vehicle because the key was also needed to

operate the vehicle. While the officers later discovered an additional key to the glove

compartment in Pugh’s shoe, they were unaware of this key at the time of the search and it could

not support a probable cause determination.

¶ 73 Because the locked glove compartment was not part of the passenger area, an open

container of alcohol stored inside of it would not have violated section 11-502(a) of the Code.

Accordingly, the search of the locked glove compartment was not justified under the automobile

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 exception because the officers lacked probable cause to believe that contraband would be found

inside. See Ross, 456 U.S. at 824.

¶ 74 I would also find that the officers were not justified in searching the locked glove

compartment based on the search incident to arrest exception. Assuming that the defendant had

been arrested for transporting an open container of alcoholic liquor at the time of the search, it

was not reasonable for the officers to believe they would find evidence of this offense inside the

locked glove compartment. Supra ¶ 71. Also, based on the facts known to the officers, the locked

glove compartment was not part of the passenger area. Supra ¶¶ 72-73. Accordingly, an open

container of alcohol in the locked glove compartment would not violate section 11-502 of the

Code.

¶ 75 Because I would find that the court erred in denying the motion to suppress evidence of

the gun and because the State cannot prove the elements of either UUWF or AHC without

evidence of the gun, I would reverse the defendant’s conviction outright. See People v. Jones,

346 Ill. App. 3d 1101, 1106-07 (2004). Accordingly, I would not reach the defendant’s argument

that his Iowa conviction for second degree burglary was not a proper predicate offense for the

charge of AHC.

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 No. 3-18-0349

Cite as: People v. McGhee, 2020 IL App (3d) 180349

Decision Under Review: Appeal from the Circuit Court of Rock Island County, No. 16-CF-
805; the Hon. Norma Kauzlarich, Judges, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Bryon Kohut, of State
for Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Dora A. Villarreal, State’s Attorney, of Rock Island (Patrick
for Delfino, Thomas D. Arado, and Mark A. Austill, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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