This section will cover, by summary and comments, various State and
Federal firearm-related cases. Some cases involving issues pertaining to
criminal acts that are not gun-related will, nonetheless, be reported where
search and seizure issues may arise pertaining to firearms.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. ALBERTO AGUILAR, Appellant.
Docket No. 112116
SUPREME COURT OF ILLINOIS
2013 IL 112116
September 12, 2013, Opinion Filed
COMMENTARY AND SUMMARY OF DECISION:
This decision should silence critics of Judge Posner’s finding that “[t]he United
States Supreme Court decided that the Second Amendment confers a right to bear
arms for self defense, which is as important outside the home as inside.”
[Emphasis added.] In Aguilar, as in Moore/Shepard, the Illinois Supreme Court relies upon the
Heller holding that “individual self defense” is indeed "the central component" of the second amendment right to keep and bear arms (Heller,
554 U.S. at 599), and therefore, “it would make little sense to restrict that right to the home, as "[c]onfrontations are not limited to the home.” The Court found that Section 24-1.6(a)(1), (a)(3)(A) of the Illinois AUUW Statute is unconstitutional on its face.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,
and Theis concurred in the judgment and opinion.
(*) The following contains some omissions noted in the quoted text:
Police officer testified that the defendant was seen holding a gun while in the back yard of a friend’s home, then dropped it to the ground in an alley when he saw the police. When recovered the gun’s serial number had been scratched off and it was loaded with three rounds. Defendant denied he had a gun at any time. “After weighing the credibility of the witnesses, the trial court found the defendant guilty of AUUW (720 ILCS 5/241.6(a)(1), (a)(3)(A) and unlawful possession of a firearm (UPF) (720 ILCS 5/243.1(a)(1). The trial court sentenced defendant to 24 months' probation for the AUUW conviction and did not impose sentence on the UPF conviction. “
The appellate court affirmed upon defendant’s appeal, one justice dissenting. 408 Ill. App. 3d 136. Defendant's petition for leave to appeal to the State Supreme Court was granted.
The Court addressed the principal issue in this case: Whether section 24-1.6(a)(1), (a)(3)(A) of the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the Second Amendment to the United States Constitution (U.S. Const., amend. II).
Lower Courts’ findings:
“After weighing the credibility of the witnesses, the trial court found the defendant guilty of AUUW (720 ILCS 5/241.6(a)(1), (a)(3)(A) and unlawful possession of a firearm (UPF) (720 ILCS 5/243.1(a)(1). The trial court sentenced defendant to 24 months' probation for the AUUW conviction and did not impose sentence on the UPF conviction.
The appellate court affirmed upon defendant’s appeal, one justice dissenting. 408 Ill. App. 3d 136. Defendant's petition for leave to appeal to the State Supreme Court was granted.
The State immediately attacked defendant’s “standing” to contest the constitutionality of the Illinois statutory provisions, alleging that defendant failed to
“show that he falls within the class of persons aggrieved by the alleged unconstitutionality. “See, e.g., People v. Bombacino, 51 Ill. 2d 17, 20 (1972).”
The State contended that because of the defendant’s conduct of possessing a loaded, defaced, and illegally modified handgun on another person's property without consent, that he enjoys no Second Amendment protection. Therefore, the State argued, “defendant has no standing to bring a second amendment challenge.”
The Court rejected the State's argument, stating:
One has standing to challenge the validity of a statute if he has sustained or if he is in immediate danger of sustaining some direct injury as a result of enforcement of the statute. People v. Mayberry, 63 Ill. 2d 1, 8 (1976).
The Court goes on to note that in this case the statutory provisions of sections 24-1.6(a)(1), (a)(3)(A) and 24-3.1(a)(1) were enforced against defendant by the State of Illinois when it initiated a criminal prosecution against him, and the "direct injury" sustained by the Defendant was the two felony convictions entered against him, resulting in the sentence of 24 months' probation. Ruling on the issue of “standing” the Court said:
If anyone has standing to challenge the validity of these sections, it is Defendant. Or
to put it another way, if defendant does not have standing to challenge the validity of
these sections, then no one does. The State's standing objection is rejected.
Second Amendment Argument and Decision:
Section 24-1.6(a)(1), (a)(3)(A) in pertinent part states:
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately
accessible at the time of the offense[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A).
Addressing the constitutionality of Section 24-1.6(a)(1), (a)(3)(A) as its main issue, the Court referenced the provisions in light of the decisions in
Heller, McDonald, and the recent 7th Circuit decision in Moore/Shepard v. Madigan, 702 F. 3d 933 (7th Cir., 2012) and clarified key holdings that some courts have misconstrued.
"Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation.' [Citation omitted .] Confrontations are not limited to the home." (quoting Heller, 554 U.S. at 592).
Turning to the recent 7th Circuit decision, the Court distinguishes the right to “keep”
arms from the right to “bear” arms, citing Moore/Shepard v. Madigan. 702 F.3d 933, C.A.7 (2012):
Finally, Moore notes that the second amendment guarantees not only the right to ‘keep’ arms, but also the right to ‘bear’ arms, and that these rights are not the same . . .The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home. To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."
Id. at 936. In other words, Moore concludes, ‘[t]he Supreme Court has decided that the [second] amendment confers a right to bear arms for self defense, which is as important outside the home as inside.’
Id. at 942. As a result, Moore held that Illinois' ‘flat ban on carrying ready to use guns outside the home,’ as embodied in section 24-1.6(a)(1), (a)(3)(A), is unconstitutional on its face. Id at 940-42.
The Court continued its analysis of Moore/Shepard, stating that the Seventh Circuit correctly noted, “neither Heller
nor McDonald expressly limits the second amendment's protections to the home. . . . Moreover, if Heller means what it says, and ‘individual self -defense’ is indeed ‘the central component’ of
the second amendment right to keep and bear arms (Heller, 554 U.S. at 599), then it would make little sense to restrict that right to the home, as ‘[c]onfrontations are not limited to the home.’ Moore, 702 F.3d at 935-36.”
. . . Indeed, Heller itself recognizes as much when it states that "the right to have arms *** was by the time of the founding understood to be an individual right protecting against both
public and private violence." (Emphasis added.) Heller, 554 U.S. at 593-94.
In concluding that the second amendment protects the right to possess and use a firearm for self defense outside the home, the Court notes: “we are in no way saying that such a right is unlimited or is not subject to meaningful regulation.”
. . . [S]ection 24-1.6(a)(1), (a)(3)(A) amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court. In no other context would we permit this, and we will not permit it here either. Accordingly, as the Seventh Circuit did in
Moore, we here hold that, on its face, section 24-1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. Defendant's conviction under that section therefore is reversed.”
Defendant also argued that this court should reverse his UPF conviction because, like section 24-1.6(a)(1), (a)(3)(A), the statutory provisions upon which his UPF conviction is based violates the second amendment. However, the Court rejected defendant's second amendment challenge to section 24-3.1(a)(1) and affirmed his conviction thereunder.
“For the reasons set forth above, we reverse defendant's conviction under section 24-1.6(a)(1), (a)(3)(A), affirm defendant's conviction under section 24-3.1(a)(1), and remand to the trial court for imposition of sentence on the UPF conviction.”
Arizona v. Gant, 129 S. Ct. 1710 (2009)
United States . Supreme Court decision pertaining to an
arrest and search of a vehicle occupant,
who had been cuffed and placed in a squad car, has resulted in the
distinguishing, if not partial overruling, of a landmark “search & seizure case
that has been universally abused by officers in the field.
Facts: The driver/owner of a vehicle, whose license had
been suspended, was arrested
after he had exited his vehicle, handcuffed and placed in the backseat of a squad car.
The arresting officer had other officers at the scene and all were aware of the
fact that the
defendant had been arrested for
the traffic violation of driving without a valid license.
The ensuing search produced a gun, and a bag of cocaine in the pocket of a
jacket in the backseat. The gun
obviously was unloaded and secured in a container as the only charges pertained
to the drugs.
At the hearing
pursuant to Defendant’s motion to suppress the warrantless search, the defense
argued a Fourth Amendment violation because he posed no threat to the officers
once he was cuffed and secured in the backseat of the patrol car. Also, that the
long-standing bright-line rule interpretation of
New York v. Belton, 453
453, 101 S. Ct. 2860 (1981), permitting a warrantless search of a motor
vehicle passenger compartment
and any containers therein as a contemporaneous incident of an arrest of the
vehicle’s recent occupant, was not applicable because he posed no threat to the
officers after he was handcuffed in the patrol car and because he was arrested
for a traffic offense for which no evidence could be found in his vehicle. When
the arresting officer was questioned as to why the search of the vehicle
passenger compartment was conducted, he replied “Because the law says we can do
The threshold issue
was whether the police may conduct a search incident to an arrest at all once
the scene is secure. The trial court had denied defendant’s motion to suppress,
and the Arizona Supreme Court had reversed, holding that
Belton was distinguishable.
In a 5-4 decision
that drew a concurring opinion by Justice Scalia, the majority found
that both Belton and
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 ( 1969), although not warranting overruling, required narrowing of their application and
reconsideration. While Belton’s
underlying principle is the officer’s safety, the
rule reinforced prior decisions holding that the search may be conducted to
preserve evidence pertaining to the arrest and
prevent its destruction, both “typically implicated in arrest
situations.” See United States v. Robinson, 414 U.S.
218, 230-234, 94 S. Ct. 467 (1973).
Another case found
to be applicable and requiring consideration in this arrest scenario was
Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127 (2004), the progeny of Belton, which concludes that “circumstances unique to the automobile context justify a
search incident to arrest when it is reasonable to believe that evidence of the
of arrest might be found in the vehicle.” The majority further clarified its holding in
Belton to be limited and “not
authorizing a vehicle search incident to a recent occupant’s arrest after the
arrestee has been secured and cannot access the interior of the vehicle.”
The majority made
it clear that “[u]nder Chimel,
police may search incident to arrest only the space within an arrestee’s
‘immediate control,’ meaning ‘the area from within which he might gain
possession of a weapon or destructible evidence.’ 395 U.S. at 763, 89 S. Ct.
2034. Further, following Justice Scalia’s concurring opinion in
Thornton, “circumstances unique to the
automobile context justify a search incident to arrest when it is reasonable to
believe that evidence of the arrest might be found in the vehicle.
In his concurring
opinion, Justice Scalia clarified the issue in this case as pertaining
exclusively to those situations where the driver or occupant of a vehicle are
noting that “[w]here no arrest is made, we have held that officers
may search the car if they reasonably believe ‘the suspect is dangerous and . . . may gain immediate control of
Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469 (1983). In the no-arrest case, the possibility of access to weapons
in the vehicle always exists, since the driver or passenger will be allowed to
return to the vehicle when the interrogation is completed. The rule of
Michigan v. Long is not at issue
here.” [ See discussion of long
and a non-arrest scenario in this author’s reported decision of
People v. Johnson,
387 Ill.3d 780, 901 N.E. 2d 455 (3d Dist., 2009).]
Accordingly, the Judgment of the State Supreme Court is affirmed.
People v. Johnson, 387 Ill. App. 3d 780 (3rd Dist., 2009)
In a search and seizure case, the 3rd
District Appellate Court has followed the lead taken by a number of courts
Terry stop scenario to include a situation where the
defendant is handcuffed and secured in a police vehicle while the vehicle in
which he was a passenger is searched without a warrant.
The starting point for these type of searches is the
landmark case of
Terry v. Ohio, 392 U.S. 1 (1968),
which allows an officer making a
proper investigatory stop to conduct a limited protective search or frisk of the
individual’s outer clothing “if the officer reasonably believes that the
individual is armed and presently dangerous to the officers or others.”
Terry, 392 U.S. at 27, 88 S. Ct., at
1883. See also,
People v. Sorenson, 196
2d 425, 431 ((2001).
“ Pursuant to Terry and Illinois law, an officer may, without violating
the fourth amendment, conduct a brief
investigatory stop or detention of an individual when
the officer has reasonable suspicion,
based on specific articulable facts
and the reasonable inferences to be drawn therefrom, to believe that the
individual has committed or is about to commit a crime.”
Terry, 392 U.S. at 20-23, 88
S. Ct. at 1879-81.
The defendant, a convicted felon, was a passenger in a vehicle near a
shooting incident to which the officer
was called to investigate. He and the driver
were ordered out of the car, and upon arrival of a back-up squad
both were handcuffed and secured
in a police vehicle. The car in which he had been a passenger was searched,
although the driver/owner did not give his consent,
and a handgun found under the passenger
seat. The firearm was later shown to be
that used in the shooting. Defendant sought to quash the arrest
and suppress evidence
(the firearm and statements he had made
to police officers), claiming illegal seizure
in violation of the United States and
Although the issue of “standing” regarding the defendant/passenger’s
contest, by motion to quash, the search of a
vehicle he does not own was before the
court, it decided it need only address
whether the search of the vehicle “was a proper limited search under
Terry, since that determination
was dispositive of the issue.”
In reaching its
conclusion, the 3rd District Appellate Court cited the usual prin-
cipal decisions following and extending
Terry, most significantly Michigan
v. Long, 463 U.S. 1032, where the U.S. Supreme Court “extended the Terry
protective search rule to allow a protective search of a passenger compartment
of a vehicle when the officer reasonably believed that the occupant was
dangerous and could gain immediate control of a weapon.”
Long at 1049.
Although the defense conceded that a
Terry stop under the facts of this
warranted, it was alleged that the search
leading to discovery of the gun was the
result of an illegal seizure. If the search of the passenger
compartment exceeds the scope of a
“limited protective search” it
is no longer justifiable and anything recovered beyond that point will be suppressed as “fruit” of
the illegal search. See People v.
Sorenson, 1196 Ill. 2d 425, 432.
Affirming the trial court's denial of defendent's motion to suppress, the court made this finding:
“ . . .[T]he narrow question before this Court is whether a police
officer, who has
reasonable suspicion to believe that
an individual was involved in a shooting that
has just occurred, may conduct a limited protective search of the
partment of the
vehicle for weapons . . .”
. . . No evidence has been presented to suggest that the search of the
was conducted in this case
exceeded the scope of a limited search.
. . . Although brief in nature, a
Terry stop may last for a
while the officer involved attempts to
dispel or confirm his suspicions.” See
Starks, 190 Ill. App. 3d 503, 509 (1989)
Further citing Starks, the Court notes “The real difference between an
investigatory stop and an arrest lies in the length of time the suspect is detained and the
scope of the investigation which follows the initial stop. [citation.] The
general rule is that the officer’s suspicions must be allayed in a reasonable
time.; if they are not, the officer must allow the person to leave or make a full
arrest. Starks at 509.
NOTE: The citation of
Starks is noteworthy in that,
although the search in that case
was deemed “investigatory” and pursuant
to the codified “Terry” rules in the Illinois Code of Criminal procedure then
promulgated, the officer conducting the
search of the vehicle occupants and the
passenger compartment drew her revolver,
ordered the occupants out of the
vehicle, and cuffed them before conducting the search. That was about as close
to an “arrest” scenario rather than “investigatory”
that one would expect to find for
purpose of challenging on “probable cause” pursuant to an arrest."
A split in districts as to what
extent the detainment may reach, coupled with the time factors impacting
“reasonableness,” should lead to more review by our State and U.S. Supreme
Court addressed a “one act, one crime” issue as it related to charges of
aggravated unlawful use of a weapon (AUUW) and unlawful possession of a weapon by a felon (UPWA) for purposes of vacating the
lesser offense conviction, not discussed here.]
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