Tuesday, April 25, 2017

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


Anonymous said...

There are so many things wrong in this case where to start is a major problem. In 1985 illegal search and seizure was difficult to prove. criminal police actions were even harder to prove. Now that body cams and dash cams are in greater use a lot of cases can move forward with much better results. I would still like to meet up with the criminal bastards that put an automatic pistol to the back of my head pressing the barrel in to my neck twisting it back and forth and asking for permission to search my car. I was moving everything I owned was in my car. I was arrested, my car was towed, 3,500 dollars worth of guns were taken from my car. the police report was false and I had absolute proof the police report was false. I never got my guns back. I will probably die the next time I am harassed by corrupt cops because I will make my best effort to blow them out of their boots. If I know I am breaking the law I will surrender, but if corrupt cops are just trying to screw me over I hope to be able to prove to them they just made their last mistake. I have great respect for good cops AND I HATE WITH A PASSION THE TRASH THAT IS ALLOWED TO WEAR A BADGE. WORKING THE EMERGENCY ROOM I HAVE SEEN A LOT OF TRASH.

Anonymous said...

I have been through this. I called the sheriff to get them to come out and stop a guy from using my yard as a dirt track for his motor cycle. while waiting on the sheriff to show up I set down on my front steps and cleaned a rifle. the rifle was laying across my lap and two little girls walked past my place in the street. they went on home and told their parents I had pointed my rifle at them. I finished cleaning the rifle and put it back in the rack on my living room wall. about a half hour later three sheriffs patrol cars show up. one of the deputies asked me to step out side. I said well its about time. they said you are under arrest. Now my front door was closed. they had cuffed me and entered my home. the rifle rack was less than ten feet from my front door. I could hear them searching my entire house. they came out of the house with one of the four rifles in the rack. took me to jail. My wife had no idea where I was. I was in jail for three days. I got out and hired an attorney. all charges were dropped and the gun was ordered to be returned. it took two weeks to get the rifle back. when I got it back the arresting deputies name was scratched in the bluing on the receiver and the gas piston was broken in half. Years later that same deputy was working for La Paz county, for some reason he left Mohave county. we do not get along. one day we may mix it up. It took two weeks to get the gun back because it was in his patrol car.