People v. Thomas

• Decision Date: 19 March 2019
• Docket Number: No. 1-17-0474,1-17-0474
• Citation: 432 Ill.Dec. 366,129 N.E.3d 584,2019 IL App (1st) 170474
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Markeese THOMAS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 170474

129 N.E.3d 584

432 Ill.Dec. 366

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

v.Markeese THOMAS, Defendant-Appellee.

No. 1-17-0474

Appellate Court of Illinois, First District, Second Division.

Opinion filed on March 19, 2019.

Modified upon denial of rehearing on May 14, 2019.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Tasha-Marie Kelly, Assistant State’s Attorneys, of counsel), for the People.

Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl, Assistant Public Defender, of counsel), for appellee.

OPINION

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

¶ 1 Defendant Markeese Thomas was charged with aggravated unlawful use of a weapon (AUUW) after police observed defendant, while in the common area of an unlocked multiunit apartment building, hand off a gun to his friend and then flee upstairs into an apartment unit. Defendant filed a motion to quash his arrest and to suppress the evidence, which the circuit court granted. The State now appeals, arguing that there was no fourth amendment violation since defendant was not a resident of the apartment unit into which he fled and since the offense occurred in the common area of the building. The State further argues police had probable cause for the arrest even without knowing that defendant lacked licenses under both the Firearm Owners Identification Card Act (FOID Card Act) ( 430 ILCS 65/0.01 et seq. (West 2014)) and the Firearm Concealed Carry Act (Concealed Carry Act) ( 430 ILCS 66/1 et seq. (West 2014)) and, regardless, defendant had abandoned the weapon before his arrest, thus precluding application of the exclusionary rule. For the reasons to follow, we agree with the State that the circuit court's judgment must be reversed.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with various counts of aggravated unlawful use of a weapon following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in Chicago, on March 25, 2015. The charges, in sum, asserted that defendant illegally possessed a handgun while not on his land or in his home (or another person's as an invitee) and without a valid Firearm Owners Identification (FOID) card or concealed carry license. See 720 ILCS 5/24-1.6 (West 2014).¹

¶ 4 Defendant subsequently filed a motion to quash his arrest and suppress evidence illegally seized.² He asserted he was illegally stopped absent reasonable suspicion and arrested without probable cause and the items recovered were a direct result of this unlawful arrest. At the ensuing hearing, Officer Caribou, of the Chicago police, first testified that on the day in question, he was on routine patrol with his partner, Officer Pena, in an unmarked car and in plainclothes, although Officer Caribou wore his police vest bearing his star number, name, and the word, "police." Officer Caribou had worked that area many times and made multiple arrests for narcotics, gangs, and drugs. He was patrolling due to the illegal activities of two rival gangs. Around 7:30 p.m., as they drove slowly down Kenwood Avenue, from about five feet away, they observed four or five males "loitering on the sidewalk in front" of the aforementioned apartment building. At that point, Officer Caribou saw two of the males, later identified as defendant and his friend Turner, "flee into the building." At that moment, Officer Caribou did not observe defendant holding a gun. On cross-examination, Officer Caribou specifically stated that defendant looked in his direction just before fleeing. After curbing his vehicle, Officer Caribou jumped out and followed the two men.

¶ 5 In response to defense counsel's question, "Had you announced your office any time prior to that?" Officer Caribou stated, "I am pretty sure we—we always say police." He then clarified that, although he did not announce his office while driving past the building, he did announce it as he left his vehicle on the sidewalk and "gave chase" into the building. Significantly, at that point defendant and Turner were already inside, and Officer Caribou lost sight of them for several seconds, as the door closed behind them. The other members of the group simply stood still on the sidewalk.

¶ 6 Subsequently, Officer Caribou "reopened the door," then stepped inside the building to what he described was the "common area." The evidence thus indicates that the building was unlocked, although Officer Caribou never explicitly stated this. Once inside, Officer Caribou observed a hallway, and to the right was a first-floor stairwell, where defendant and Turner stood. Just after the door closed behind Officer Caribou, both defendant and Turner looked in his direction. Officer Caribou then saw that defendant had a firearm, which defendant promptly handed to Turner before fleeing to the second floor. At that point, Officer Caribou "probably" said "police, freeze." Defendant went into an apartment unit on the second floor and closed the door behind him. Turner, who was "locked out," froze and then threw the handgun on the second-stair landing. Turner was detained and handed off to Officer Pena, who had just arrived inside the building.

¶ 7 Officer Caribou recovered the loaded firearm, "a [.]380," and returned to the locked apartment unit. A female, whom Officer Caribou believed was defendant's girlfriend, opened the door. Officer Caribou arrested defendant, handcuffing him just outside the unit. Defendant was transported to the police station, where he received Miranda warnings. Only after that did officers learn defendant did not have a FOID or concealed carry card.

¶ 8 In response to the State's questions on cross-examination, Officer Caribou stated that he had not stopped or detained defendant before defendant and Turner initially fled into the building. At the police station, Officer Caribou also discovered that defendant resided at 7644 South Stewart Avenue.

¶ 9 The defense rested, and the State moved for a directed finding, arguing the defense had not met its burden of showing defendant's fourth amendment rights were violated. The State argued the weapon was recovered in the common area of the apartment building, where defendant had no privacy interest. Moreover, he was not a resident of the apartment unit, so he had no "standing."³ Accordingly, there was no stop, search, or seizure of defendant that day.

¶ 10 The defense countered that there was in fact a stop but no reasonable suspicion to support it "from the inception." That is, the officer's several-second observation of the loitering group did not amount to reasonable suspicion to pursue defendant. Defense counsel emphasized the two individuals fled into the building even when officers had not yet announced their office. There was no suggestion that defendant and Turner knew police were in the vehicle or fled at the sight of the officers (a matter counsel conceded could lead to reasonable suspicion). The defense noted it was a crime-ridden area where one might expect flight at the sight of a slow-moving vehicle. In response to the judge's query, counsel stated that defendant's privacy rights began at the point that defendant entered the building. The defense elaborated that defendant entered the apartment unit and locked the door behind him, with his girlfriend eventually opening the door, all of which suggested that "would be enough to establish" defendant "may be a resident of this building." The defense thus asserted that defendant had a reasonable expectation of privacy in the building. The defense further argued that defendant was arrested prior to any knowledge as to the lack of a FOID or concealed carry card, so there was no probable cause for the arrest, and no exigent circumstances justifying entry into the building.

¶ 11 The court denied the State's motion for a directed verdict, declaring, "[a]t this point the petitioner has met [his] burden." The State then rested. Closing arguments largely reflected arguments already made. The State added that defendant had abandoned the weapon before entering the apartment unit. According to the State, even assuming for the sake of argument that defendant lived in the apartment, he still had no privacy interest in the building's common area. The State further argued that the police had probable cause to arrest defendant on seeing him expose his gun in public and tender it to someone else, contrary to the concealed carry law. Defense counsel, on the other hand, argued such actions occurring inside a residential apartment complex did not give rise to probable cause for arrest without police first verifying whether defendant had gun licenses. The defense argued probable cause, instead, arose at the station, and the court agreed.

¶ 12 In conclusion, the court noted that there was no evidence of criminal activity from the outset "to suggest that this defendant should be stopped in any way." The court found that outside the apartment complex, defendant was not committing any crime, and there was no reason to believe he was committing a crime, yet police chased him anyway. The court stated that it was during the "pursuit" that police observed a weapon. However, given the laws permitting the public to possess guns outside the home via a FOID card and concealed carry license, the court ruled that when the police observed defendant with a handgun, they did not have probable cause to stop, seize, and then arrest defendant. The court noted that the gun was not fully exposed but rather found that "a moment in time in your hand should be partially concealed." The court, accordingly, found the arrest was unlawful and, further, that the gun recovered "subsequent to the violation of this defendant's constitutional rights" had to be suppressed under the exclusionary rule. The court granted defendant's motion to quash his arrest and suppress evidence.

¶ 13 ANALYSIS

¶ 14 The State appeals from the trial court's order granting defendant's motion to suppress. On...