Conceal and Carry

Since the the passing of Illinois concealed carry legislation the question still remains:

Can a police officer arrest a person seen carrying a gun?

To answer this question we have to understand how the Illinois concealed carry law intersects with general search and seizure principles.

The Gist Of Conceal And Carry Law In Illinois

The very nature of licensing under the Illinios conceal and carry law is that a gun may be carried if concealed, that is, not seen by the public. See Concealed Carry Act 430 ILCS 66/10, 25.

A “ concealed firearm” means a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public.

As a result, the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns in view of the public.

Illinois Conceal And Carry Act

The Act defines “concealed firearm” as

“a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.” – 430 ILCS 66/5.

A concealed carry license is issued only to persons who have

Applied,
Paid a licensing fee,
Been approved by the Department of State Police, and
Be at least 21 years of age,
Have a currently valid FOID card,
Not having been convicted in any state of a crime involving the use of physical force or violence within 5 years of applying, and
Complete firearms training.

See § 10(a) and § 25.

Under the Act, a CCL (concealed carry license) shall permit the licensee to:

(1) Carry a loaded or unloaded concealed firearm, fully concealed or partially concealed, on or about his or her person; and
(2) Keep or carry a loaded or unloaded concealed firearm on or about his or her person within a vehicle.

Conceal & Carry Law Requires Disclosure

The Firearm Concealed Carry Act further provides that after an officer initiates an investigative stop or traffic stop,

“…upon the request of the officer the licensee or non-resident shall disclose to the officer that he or she is in possession of a concealed firearm under this Act…”

Further,

“Upon the request of the officer, the licensee or non-resident shall also identify the location of the concealed firearm and permit the officer to safely secure the firearm for the duration of the investigative stop.”

§ 10(h).

During a traffic stop, any passenger within the vehicle who is a licensee must also comply with the disclosure requirements.

Other Illinois Gun Laws (The UUW’s)

A person commits unlawful use of a weapon when he knowingly “carries or possesses in any vehicle” any pistol, but this offense does not apply to or affect transportation of weapons that meet one of the following conditions, if the weapon is:

Broken down in a non-functioning state
Not immediately accessible
Unloaded or enclosed in a case or
“Carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act.”

720 ILCS 5/24-1(a)(4).

But…possession of a loaded gun in public is not necessarily unlawful.

Our supreme court struck down a section of the AAUW statute that categorically prohibited the possession of an operable firearm outside the home as unconstitutional. See People v. Aguilar, 2013 IL 112116, ¶ 22,

However, possession of an

Uncased
Loaded and
Immediately accessible weapon
In a public place

is still unlawful unless that weapon is fully or partially concealed and the person in possession of that weapon has been issued a concealed carry license.

See Aggravated unlawful use of a weapon under 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5); 430 ILCS 66/10(c)(1).

Charging Under UUW Is Not Permitted When…

Thus, charging under the Illinois UUW sections is not permitted when a weapon is…

(1) Broken down in a nonfunctioning state
(2) Not immediately accessible or
(3) Unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person with a valid FOID card.

Why Is The UUW and AUUW Law Important?

When we begin to look at the probable cause that may or may not exist when police become aware that a person is holding a gun in public the laws that might in the process of being violated become important.

We’ll describe probable cause in terms of the AUUW statute because, at the time of a defendant’s arrest, this will likely be the sole offense that criminalized pure possession of a gun.

Let’s quickly review some search and seizure law.

Search & Seizure Law

Fourth Amendment

The fourth amendment to the United States Constitution and the Illinois Constitution of 1970 both “guarantee the right of individuals to be free from unreasonable searches and seizures.” People v. Colyar, 2013 IL 111835, ¶ 31; see U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6.

What Is Probable Cause For An Arrest?

Probable cause exists where an arresting officer has knowledge of facts and circumstances that would have led a reasonable person to conclude the defendant has committed or is committing a crime. People v. Jones, 215 Ill. 2d 261, 273-74 (2005) (citing Brinegar v. Unite d States, 338 U.S. 160, 175-76 (1949)).
This determination of probable cause must be based on facts known to the police at the time of the arrest, not the officer’s subjective belief. People v. Lee, 214 Ill. 2d 476, 484 (2005).
Ultimately, the probability of criminal activity and common-sense considerations, not proof beyond a reasonable doubt, determines whether probable cause has been established. People v. Montgomery, 112 Ill. 2d 517, 525 (1986)).
At the same time, probable cause is “more than bare suspicion.” Jones, 215 Ill. 2d at 273; see People v. Bunch, 327 Ill. App. 3d 979, 983-84 (2002) (“Suspicions and hunches, no matter how reasonable, do not add up to probable cause to arrest.”).

Reasonable Suspicion & Terry Stops

Terry permits an officer to conduct a brief, investigatory stop of a person whom the officer reasonably believes has committed, or is about to, commit a crime.

To justify a Terry stop, officers must be able to point to specific and articulable facts that, considered with the rational inferences therefrom, make the intrusion reasonable. Pursuant to Terry, “a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime.” People v. Close, 238 Ill. 2d 497, 505 (2010) (citing Terry, 392 U.S. at 22).

“The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior, and due weight must be given to the reasonable inferences the officer is entitled to draw from the facts in light of his experience.” People v. Thomas, 2019 IL App (1st) 170474, ¶ 19.

Pat Down For Weapons May Be Reasonable

Further, “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon.” People v. Sorenson, 196 Ill. 2d 425, 432 (2001) (citing Terry, 392 U.S. at 24).

While the officers did not inquire about his criminal history or firearm licenses at that moment, “the existence of a possible innocent explanation, like defendant’s possession of the required gun licenses, does not necessarily negate probable cause.” Thomas, 2019 IL App (1st) 170474, ¶ 39.

Officer Need Not Be Sure

While reasonable suspicion is a less stringent standard than probable cause, an officer’s hunch or unparticularized suspicion is insufficient. Ultimately, in determining whether the officer had a reasonable suspicion, a court considers the totality of the circumstances known to the officer and views those facts from the perspective of a reasonable officer at the time of the stop.

“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).

Accordingly, to justify a Terry stop, an officer must simply “be able to point to specific and articulable facts which, taken together with rational inferences from those facts,” supports the conclusion that an individual has committed or is about to commit a crime. Terry, 392 U.S. at 21; People v. Magallanes, 409 Ill. App. 3d 720, 725 (2011).

Police Can Rely On Their Experience

Ultimately, whether an investigatory stop is reasonable is judged by the totality of the circumstances (People v. Jackson, 348 Ill. App. 3d 719, 729 (2004)) using an objective standard, and only the facts known to the officer at the time of the stop may be considered (Linley, 388 Ill. App. 3d at 749).

When Is A Person Seized Under The Fourth Amendment?

Under the fourth amendment, “an individual is seized when an officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” People v. Harris, 228 Ill. 2d 222, 246 (2008).

Formulated another way, “a person has been seized when, considering the totality of the circumstances, a reasonable person would believe he was not free to leave.” People v. Oliver, 236 Ill. 2d 448, 456 (2010) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

In considering whether a seizure occurred, courts consider the Mendenhall factors:

(1) The threatening presence of several officers
(2) The display of a weapon by an officer
(3) Some physical touching of the person or
(4) Using language or tone of voice compelling the individual to comply with the officer’s requests.

But A Person Has To Comply With A Show Of Force To Be Seized

The Mendenhall test “states a necessary, but not a sufficient, condition for seizure.” Thomas, 198 Ill. 2d at 111 (citing California v. Hodari D., 499 U.S. 621, 628 (1991)). This is because, “while an officer’s show of authority may amount to a seizure, defendant is not seized when he ignores a show of authority.” People v. Billingslea, 292 Ill. App. 3d 1026, 1030 (1997).

Thus, in Thomas, our supreme court explained:

The police may well convey a reasonable feeling of restraint, but that message does not amount to a seizure within the meaning of the fourth amendment until there is submission to it. A person must submit to a show of authority before that show of authority can constitute a seizure.
Thomas, 198 Ill. 2d at 112 (quoting People v. Thomas, 315 Ill. App. 3d 849, 857 (2000)).

“Headlong flight” after a suspect sees the police is “a pertinent factor” in assessing an officer’s suspicion of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).

Yes, But Flight Alone Means Nothing

The case law does say that flight alone connotes criminal activity. Jones, 196 Ill. App. 3d at 956. Illinois courts repeatedly hold that flight, without more, cannot result in a finding of reasonable suspicion, let alone probable cause.

Running From The Police Not Illegal

Our courts routinely find that running from the police is not alone sufficient to establish reasonable suspicion unless other circumstances indicate suspicious or illegal behavior. See

In re D.L., 2017 IL App (1st) 171764, ¶ 29 (no reasonable suspicion where aside from respondent’s flight, there was no testimony showing that respondent was acting suspiciously in any way)
People v. Harris, 2011 IL App (1st) 103382, ¶ 15 (evidence of flight, given the dearth of contextual evidence suggesting any other criminal activity, was insufficient to justify even Terry stop)
In re D.W., 341 Ill. App. 3d 517, 526 (2003) (flight established reasonable suspicion but would not have constituted probable cause to arrest)

Tips From The Public

An officer may also obtain reasonable suspicion and initiate a Terry stop based upon information provided by members of the public, including a known or unknown informant, a victim, an eyewitness, or a concerned citizen. People v. Nitz, 371 Ill. App. 3d 747, 751 (2007); Jackson, 348 Ill. App. 3d at 730.

Anonymous Tip

Our supreme court has held that “a tip from an anonymous person may supply the requisite quantum of suspicion to conduct a Terry stop” only if “the information bears some indicia of reliability.” People v. Henderson, 2013 IL 114040, ¶ 26.

The tip must be reliable not only in its tendency to identify a determinate person, but also in its assertion of illegality.

It must show that the anonymous informant has inside information” by, for example, “accurately predicting future behavior. An anonymous tip alone seldom provides law enforcement officers with the reasonable suspicion necessary to initiate a lawful investigatory stop because such tips generally fail to “demonstrate the informant’s basis of knowledge or veracity.” White, 496 U.S. at 329.

Tip From A Known Concerned Citizen

Information provided by a concerned citizen is generally considered to be more credible than that provided by a confidential informant who provides information in exchange for payment or another form of personal gain. Linley, 388 Ill. App. 3d at 750; Nitz, 371 Ill. App. 3d at 752.

Similarly, information gleaned from a known individual is generally considered to constitute stronger evidence than that provided by one who is anonymous. See Nitz, 371 Ill. App. 3d at 751.

Some Corroboration Is Always Needed

Nonetheless, even “when information comes from a named witness, it remains the case that a minimum of corroboration or other verification of the reliability of the information is required.” Nitz, 371 Ill. App. 3d at 751- 52 (quoting Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 851 (2003)); see also Jackson, 348 Ill. App. 3d at 730 (recognizing that “the mere fact that a citizen is identified will not automatically impart credibility and reliability to his statement” (quoting People v. Ertl, 292 Ill. App. 3d 863, 873 (1997))).

When it comes to the corroboration of third-party tips, courts have recognized that the corroboration of innocent details or of information that is readily known or knowable is of little value, whereas a showing that an informant is able to predict a defendant’s future behavior lends credence to the tip. See Nitz, 371 Ill. App. 3d at 752.

911 Callers Are Not Anoymous

A tip conveyed through an emergency number should is not considered to be “truly anonymous” and is viewed with less skepticism even if the caller does not specifically identify himself or herself because such callers are likely aware that authorities have the means to ascertain the phone number from which the call was placed. See People v. Shafer, 372 Ill. App. 3d 1044, 1050-51 (2007)); see also Prado Navarette, 572 U.S. at ___, 134 S. Ct. at 1689 (finding that an unknown caller’s use of the 911 emergency system was an “indicator of veracity” because the system “has some features that allow for identifying and tracing callers, and thus provides some safeguards against making false reports with immunity”).

Officer Safety Is A Real Concern

People v. Colyar

The Illinois Supreme Court’s decision in People v. Colyar, 2013 IL 111835, is relevant to this analysis.

In Colyar, police approached a car and saw in plain view a plastic bag with a bullet inside. The officer then ordered defendant and his two passengers out of the vehicle and handcuffed them.

Police recovered a plastic bag from the center console containing five live rounds of .454-caliber ammunition. The officers then patted down the defendant and recovered a bullet from his front pants pocket matching the five .454-caliber bullets. Based on the recovery of the five bullets from the center console and the single bullet from the defendant’s pocket, the officer believed that a gun might be inside defendant’s vehicle.

The officer’s partner subsequently found a .454 caliber revolver under the floor mat on the front passenger side.

The Presence Of A Gun Poses A Legitimate Safety Concern

A search is “permissible only when the officers possess a reasonable belief, based on specific and articulable facts and reasonable inferences from those facts, that the individual was dangerous and could gain control of a weapon.” Colyar, 2013 IL 111835, ¶ 39.

As Terry instructs,

“the officer need not be absolutely certain that the individual is armed; the issue is whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”
Terry, 392 U.S. at 27.

The Illinois Code of Criminal Procedure Allows Protective Searches

Pursuant to section 108-1.01 of the Code of Criminal Procedure of 1963, when an officer has stopped a person under the “Search During Temporary Questioning” provision in the Code for temporary questioning and “reasonably suspects that he or another is in danger of attack, he may search the person for weapons” and may take the weapon “until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.”

See 725 ILCS 5/108-1.01.

Should Police Be Allowed To Do Protective Pat Downs During Consensual Encounters?

As an Illinois Supreme Court justice observed, it is “actually a hotly contested issue in the federal courts,” whether the police may engage in a protective weapons search for their own safety during a voluntary encounter and without reasonable suspicion. Colyar, 2013 IL 111835, ¶ 71

This court found that an officer may conduct a protective search only if he has reason to believe that the suspect is armed and dangerous “and” if he is entitled to make a stop. See People v. F.J., 315 Ill. App. 3d 1053, 1059-60 (2000).

We explained:

If an officer, lacking the quantum of suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field interrogation, he may not frisk the person interrogated upon suspicion that he is armed; in such a case the officer may protect himself by not engaging in the confrontation.
F.J., 315 Ill. App. 3d at 1060 (quoting 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 247-49 (3d ed. 1996))

Does Defendant Have An Obligation To Tell Police He Is Carrying?

Can Defendant’s Silence Be Used Against Him?

While there are valid reasons why an individual approached by police officers might choose to remain silent, even after the police have recovered a gun, an individual’s choice not to volunteer that he has a concealed carry license when a gun is found on his person is an additional factor that police are entitled to take into account when they determine whether there is probable cause to arrest that individual and seize the gun.

An officer won’t always ask a subject, pursuant to § 66/10(h), if he is carrying a gun.

The Concealed Carry Act makes it clear that once a Terry stop has been initiated, an officer may ask an individual found in possession of a concealed or partially concealed gun to produce his or her concealed carry license. 430 ILCS 66/10(h).

But does a defendant have to volunteer the information?

A reasonable person who was not committing a crime and was legally carrying would be expected to tell the officers he was licensed to have and carry a gun.

Although the law does not require it. Practically, speaking if a person does not advise an officer that he is licensed under Illinois concealed carry that can be used against a defendant.

In the absence of such a disclosure and in combination with all other factors police will likely be justified in detaining and arresting a man with a gun before they can confirm his licensure status.

The existence of a possible innocent explanation, like defendant’s possession of the required gun licenses, does not necessarily negate probable cause. See People v. Geier, 407 Ill. App. 3d 553, 557 (2011).

No “Arrest First Determine Licensure Later” Rule

Not withstanding the above paragraphs court’s are very careful to say that under the current conceal and carry legal landscape in Illinois, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity.

Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has a FOID card.

The court’s caution against an “arrest first, determine licensure later” method of police patrol.

The totality of the circumstances must suggest criminal activity. Gun possession and just about anything else may provide police with sufficient probably cause and reasonable suspicion for a detention and an arrest.

Back To The Main Question…

Does Seeing A Gun Create Probable Cuase For An Arrest or Reasonable Suspicion For A Seizure?

The mere possession of a firearm, itself, may not be a crime.

The current law of the land requires that police know something about a subject’s status as a felon or whether he possesses a valid Firearm Owner’s Identification Card or concealed carry license before they assume that person is illegally in possession of a gun.

Following the Illinois Supreme Court’s September 2013 decision in People v. Aguilar, 2013 IL 112116, a report of a “man with a gun” is not necessarily indicative of criminal activity.

After Aguilar, 2013 IL 112116, the mere observation of a gun, absent other evidence of criminal activity, can not provide probable cause for an arrest.

Exactly when, then, do police have reasonable suspicion or probable cause to believe a man with a gun is committing a crime?

The question we are asking is if it was possible for defendant to be carrying a firearm in accordance with the Act?

Final Conclusions

It will Take Possession Of A Gun Any Anything Else…

The case law has shown that court’s will look for possession of a gun and just about other behavior inconsistent with lawful possession of a gun.

Any possession of a firearm not in accordance with the Act, like being observed with a firearm in your hand and moving it about the vehicle, will create sufficient probable cause to get you arrested.

When a person is acting strange while in possession of a gun it likely will be reasonable for the officer to believe the defendant is committing unlawful use of a weapon even if he had a valid conceal and carry permit.

In fact, any gun exposed in public sufficiently to be seen by police or citizens is sufficiently contra to Illinois concealed carry to justify an arrest.

Illinois Concealed Carry Doesn’t Necessarily Prevent An Arrest