People v. Horton

• Decision Date: 23 September 2019
• Docket Number: No. 1-14-2019,1-14-2019
• Citation: 436 Ill.Dec. 453,142 N.E.3d 854,2019 IL App (1st) 142019 -B
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Markell HORTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 142019 -B

142 N.E.3d 854

436 Ill.Dec. 453

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Markell HORTON, Defendant-Appellant.

No. 1-14-2019

Appellate Court of Illinois, First District, First Division.

Opinion filed September 23, 2019

Modified on denial of rehearing November 18, 2019

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Pivotal changes in Illinois law dealing with the carrying of firearms, partly mandated by United States Supreme Court rulings, have exacerbated legal and practical issues for police. Foremost, police still must enforce the mandate to reduce gun violence and remove illegal firearms from the streets. Presumably acting on that laudable desire, an officer had a hunch, based on seeing "a metallic object" in Markell Horton's waistband, and pursued him. Eventually, police found a handgun hidden under a mattress in the bedroom where they found Horton and charged him with the handgun's possession.

¶ 2 In our initial decision, issued in the aftermath of People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, we reversed the trial court's denial of Horton's motion to quash his arrest and suppress a gun found during the search. People v. Horton , 2017 IL App (1st) 142019, 413 Ill.Dec. 497, 78 N.E.3d 489. In Aguilar , the court declared facially unconstitutional a portion of the aggravated unlawful use of a weapon statute under which Horton had been convicted. Then, our supreme court issued People v. Holmes , 2017 IL 120407, 418 Ill.Dec. 254, 90 N.E.3d 412, finding that the void ab initio doctrine applied in Aguilar did not retroactively invalidate probable cause to arrest. We were ordered to vacate our decision and reconsider. To this end, we requested the parties submit supplemental briefs on the impact of Holmes. Under Holmes , the void ab initio doctrine no longer factors into our analysis. Nonetheless, our decision today reaches the same result.

¶ 3 Horton argues the trial court erroneously denied his motion to quash arrest and suppress evidence. He contends that officers lacked probable cause to believe he was committing a crime and thus had no lawful basis to arrest him. Specifically, Horton claims that the officers' observation of a metallic object and Horton's subsequent flight into a house did not amount to probable cause of criminal activity. Alternatively, Horton argues that the officers lacked reasonable suspicion to chase him into the house and perform a Terry stop.

¶ 4 The State counters that the record supports the belief of police officer Roderick Hummons that Horton had a gun and, thus, a finding of probable cause to arrest. The State also highlights Horton's flight as supporting probable cause. Once in the house, the State contends, Horton cannot challenge the officers' pursuit because he had no expectation of privacy. Alternatively, the State suggests that the doctrine of "hot pursuit" protects the officers' actions, assuming Horton could challenge their entry into the house.

¶ 5 We agree with Horton and find that the trial court erred in denying his motion to suppress. The record unambiguously establishes that Horton was under arrest after officers chased him into the house and before they discovered the gun. Because Horton was under arrest, the officers must have had probable cause, more than reasonable suspicion, to believe he was committing a crime. At the outset, we find that the record does not support a conclusion that Hummons had cause to believe that Horton possessed a gun at all. The trial court found that Hummons's observations led him to believe that Horton "may or may not" have had a gun. Deferring to that factual finding, as we must, we conclude that Hummons had no more than a hunch. We also find that, even if Hummons reasonably believed Horton had a gun, he was not aware of any facts that would have led him to believe that Horton's possession was criminal.

¶ 6 Because we find no cause to believe that Horton was committing a crime based on the observation of a metallic object that "may or may not" have been a gun, we reject Hummons's reliance on Horton's flight into the house. Illinois courts repeatedly hold that flight, without more, cannot result in a finding of reasonable suspicion, let alone probable cause.

¶ 7 We also are mindful of the reluctance of black men interacting with police, as courts around the country and a Department of Justice report on policing in Chicago have recognized. This record does not support, and we do not find, any racial element to the interaction; even so, we cannot ignore the well-documented, reasonable, and noncriminal impulse to avoid interactions with police. Finally, the record contains no facts that would justify a finding of probable cause to arrest Horton once officers followed him into the house. Taken together, we conclude that Horton's arrest was not justified by probable cause and, accordingly, unlawful.

¶ 8 We also find that suppression is the appropriate remedy. The State has contested Horton's ability to seek suppression of the gun because officers found it in a house where he has no expectation of privacy. We disagree. The text of the fourth amendment protects an individual interest in being free from unreasonable seizures. That interest does not disappear merely because a person does not have a privacy interest in their location at a given moment. Suppression of evidence always exists as a remedy for a fourth amendment violation so long as the discovery of that evidence is sufficiently linked to the unlawful police conduct. Here, officers discovered the gun immediately after and as a direct result of Horton's arrest. Under long-settled fourth amendment principles, the gun's discovery is the fruit of Horton's unlawful arrest and must be suppressed. Because the State could not succeed on remand without this evidence, we reverse Horton's conviction outright.

¶ 9 Horton raises three more arguments. He contends the State failed to prove him guilty beyond a reasonable doubt, the trial court improperly excluded evidence of the registration and ownership of the firearm seized by the police, and his counsel was ineffective for failing to introduce evidence that another person owned the gun officers discovered. Because we reverse Horton's conviction on the ground that the officers unlawfully obtained the gun, we need not address these arguments.

¶ 10 Background

¶ 11 The State charged Horton with seven gun-related counts, but elected to proceed only on one charge, that of armed habitual criminal (knowingly possessing a firearm after being convicted of two qualifying felonies), a Class X felony. 720 ILCS 5/24-1.7 (West 2010).

¶ 12 Motion to Quash Arrest and Suppress Evidence

¶ 13 Before trial, Horton filed a motion to quash the arrest and suppress evidence. He argued that the police had no warrant and no probable cause to arrest him, and so the evidence connecting him with the gun came within the purview of the exclusionary rule and should have been suppressed as the fruit of the illegal arrest. See Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

¶ 14 The only witness at the hearing on the motion to quash, Chicago police officer Hummons, testified that around 3 p.m. on August 11, 2011, while on patrol in an unmarked police car, he and his partner, Officer Nyls Meredith, drove past a house at 6901 East End Avenue, Chicago. Hummons saw two people on the porch, and Horton standing in front of them. At that point, Hummons thought Horton lived in the house. Hummons did not see Horton violate any law.

¶ 15 Horton looked in Hummons's direction. When he did, Hummons noticed a "metallic object in his waistband." According to Hummons, he told Meredith, who was driving, to stop. As the officers were getting out, Horton turned and rushed inside the house. Hummons claimed he found a set of keys on the ground and, about five minutes later, used the keys to unlock the door. Hummons and Meredith let themselves inside.

¶ 16 Hummons went upstairs because he heard a noise there. He saw Horton in one of the bedrooms crouched next to a bed. Hummons thought Horton was "concealing an item." Hummons detained Horton. Meredith recovered a handgun from under the mattress. The handgun appeared to Hummons to be what he saw sticking out of Horton's waistband. Horton told Hummons that he did not live at the house, the bedroom was not his, and neither was the gun.

¶ 17 Defense counsel questioned Hummons about his preliminary hearing testimony, the transcript of which is not included in the record. At the preliminary hearing, Hummons said nothing about the object being or appearing to be a butt of a handgun, only a "chrome metal object." Defense counsel asked, "you could have said you saw a gun, but you didn't believe you saw a gun yet, isn't that true?" Hummons replied, "[t]hat's correct." Hummons then stated that what he saw in Horton's waistband when he was outside was shiny, a "very chrome weapon."

¶ 18 Defense counsel asked whether the weapon had a wooden handle. Hummons testified that it had wooden grips, but the grips covered only part of the handle and the remainder was metal. He said the handle had chrome around it and a chrome "slide."

¶ 19 The parties stipulated that a "firearms receipt" and "work sheet report" Hummons prepared described the gun as a Taurus with a black handle, not a chrome handle.

¶ 20 The State argued that Horton was not "seized at any point" until the gun was recovered. Horton had no reasonable expectation of privacy in the bedroom, but even if he did, the officer was acting in "hot pursuit" and exigent circumstances justified taking Horton into custody and recovering the handgun without either an arrest or search warrant.

¶ 21 Horton pointed out that Hummons's testimony varied from that of his preliminary hearing testimony in which he said he saw a "metal object." Horton maintained that his...