People v. Thomas, 2019 IL App (1st) 170474 (March). Episode 609 (Duration 11:51)

Police see a defendant hand a gun to another person and then try to run and hide.

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First See

• Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (Supreme Court Is Pushed To Decide If Apartments Have Less Constitutional Protection Than Houses)
• Episode 464 – Recap of the Apartment v. House Controversy
• Episode 595 – In re K.M., 2019 IL App (1st) 172322 (February) (Police Still Haven’t Quite Got The Hang Of This Property Based Rights Thing When They Trample Onto Private Property)
• Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?)
• Episode 601 – People v. Holmes, 2019 IL App (1st) 160987 (March) (Police Told Man Has A Gun An Unconstitutional Stop Then Happens)

Gist

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.

Loitering Youths

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, the officer saw two of the males, later identified as defendant and his friend, “flee into the building.” At that moment, the officer did not observe defendant holding a gun. Police stopped their car and jumped out and followed the two men.

The men ran inside the apartment building while the other members of the group simply stood still on the sidewalk.

Police Enter The Building

Subsequently, the officer “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 the officer never explicitly stated this.

Once inside, the officer observed a hallway, and to the right was a first-floor stairwell, where defendant and his friend were standing. At that point, the officer saw that defendant had a gun. He promptly handed it his friend before fleeing to the second floor.

The officer “probably” said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the door behind him. His friend was was “locked out,” froze and then threw the handgun on the second-stair landing. Buddy was detained and arrested. 

The Gun

Police recovered the loaded firearm, a .380, and returned to the locked apartment unit.

The Apartment Unit

A female, whom the officer believed was defendant’s girlfriend, opened the door.

The officer arrested defendant, handcuffing him just outside the unit. 

Only after that did officers learn defendant did not have a FOID or concealed carry card.

Trial Court Grants The Motion

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.

Issue

The question of law at issue in this case is whether a fourth amendment violation occurred when the police entered an unlocked multiunit apartment building without a warrant and, once inside the common area, observed defendant hand his friend a gun just before both fled upstairs, with defendant entering his purported apartment unit while the friend then discarded the gun.

Reasonableness Requirement

Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop (and therefore necessarily seize) a person for temporary questioning if he reasonably believes the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91.

Thus, a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001).

The Initial Encounter: Unprovoked Flight

An individual’s unprovoked flight on seeing police in an area known for crime is suggestive of wrongdoing and may justify police suspecting that individual of criminal activity, which warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113.

That the defendant’s flight from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain that individual to resolve any ambiguity.

Here, the most rational inference from the officer’s testimony is that the police presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable suspicion. While defense counsel suggested that defendant and Turner could have mistaken the unmarked police vehicle for a potential drive-by shooter, for example, this innocent explanation does not lessen the officers’ objective in resolving any ambiguity under the law.

Police Entry Into Unlocked Apartment Building: Privacy Interest in Apartment Common Area

Notably, the fourth amendment protects people, not places. Pitman, 211 Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where those people are. As such, a defendant who objects to the search of a particular area must prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d at 22.

Thus, a “search” for purposes of the fourth amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Carodine, 374 Ill. App. 3d at 22.

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st) 143255, ¶ 20. In that sense, Smith, 152 Ill. 2d 229, is instructive. See People v. Smith, 152 Ill. 2d 229, 244 (1992) (police enter apartment building and overhear incriminating conversation police had a right to be there and defendant had no expectation of privacy). See also Carodine, 374 Ill. App. 3d at 24 (holding the defendant did not have an objective expectation of privacy to the dryer vent because it was located in a common area where other tenants of the building, the landlord, and members of the public had access; therefore, the officer’s opening and reaching inside of the vent was not a fourth amendment “search”).

What About Bonilla?

In Bonilla, 2018 IL 122484, the use of a drug-sniff dog at the threshold absent a warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment rights. Similarly distinguishable is Burns, 2016 IL 118973, ¶ 44, where the court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s apartment door, located within a locked apartment building, violated the defendant’s fourth amendment rights.

Here, the officer entered the unlocked apartment building at a reasonable hour and stepped into what he described was the “common area” of the building. Our supreme court has expressly stated that the “term ‘common area’ suggests an area left open for common or public use,” which necessarily negates any expectation of privacy. People v. Janis, 139 Ill. 2d 300, 318 (1990); Smith, 152 Ill. 2d at 245-46.

Wasn’t Locked

Defendant did not present any testimony that the unlocked multiunit building was customarily locked or had a “no trespass” sign posted outside such that he might have an expectation of privacy there. The police also had a legal right to be there, just as any other tenant, landlord, delivery person, or member of the public.

Police may even lawfully enter the curtilage as long as they do not exceed the scope of being there. That is, a police officer not armed with a warrant may approach a home and knock because that is “no more than any private citizen might do.” Florida v. Jardines, 569 U.S. 1, 8 (2013).

The police did not exceed the scope of their license to be there.

Holding

Accordingly, there was no fourth amendment search implicated simply by the police officers’ entry into the common area of this unlocked building. That is because a search implies prying into hidden places for concealed items, and it is not a search to observe that which is in open view. People v. Bridges, 123 Ill. App. 2d 58, 67 (1970).

Likewise, there was no seizure of defendant’s person, since police had not then restrained defendant’s liberty. Again, it was defendant’s burden to show there was a search or seizure and that it violated his fourth amendment rights, yet defendant did not fulfill that burden.

Firearm Presence and Probable Cause To Arrest

Defendant maintains that the police lacked reasonable suspicion or probable cause to believe he was committing a crime because possession of a gun is not per se illegal and the police failed to ask defendant whether he had a valid FOID card or concealed carry license prior to arresting him.

The very nature of 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.” Id. § 5. As a result, the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns in view of the public.

A person with a concealed firearm must at all times possess his concealed carry license, unless he is on his own land or in his abode or legal dwelling (i.e., home) or acting as an invitee on another person’s land or in his or her home. Id. § 10(g).

The parties have not cited, nor has our research revealed, an Illinois case demonstrating that the common area of a multiunit apartment building constitutes “land,” “abode,” or a “legal dwelling,” within the meaning of the Concealed Carry Act. See People v. McClure, 218 Ill. 2d 375, 382 (2006) (to effect the legislature’s intent, courts should interpret the language of a statute according to its plain and ordinary meaning).

In addition to defendant’s aforementioned flight, here, defendant’s actions on seeing police of handing his gun to another person in the common area of an apartment building, which was not his land or home, and then fleeing the scene, in totality, are facts that gave police probable cause to believe at the very least that defendant illegally possessed the gun. See Williams, 266 Ill. App. 3d at 760 (the trier of fact could infer that the defendant who ran from police and threw his gun into the garbage did not have a FOID card while fleeing from police).

The facts indicated a probability that defendant did not have the necessary gun licenses, that he had violated the FOID Card Act and the Concealed Carry Act with an illegal transfer to another individual, and that he had violated the Concealed Carry Act by exposing his gun in a semipublic place.

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

What About Holmes?

We thus caution against an “arrest first, determine licensure later” method of police patrol.

However, as set forth above, mere gun possession was not the scenario that presented itself to police in this case. The totality of the circumstances suggested criminal activity. 

Abandonment of the Firearm And The Arrest

Regardless, given the sequence of events in this case, we agree with the State that defendant had abandoned his weapon before police even collected the gun and arrested defendant. Notably, abandoned property is not subject to fourth amendment protection since no one can have a reasonable expectation of privacy in an abandoned item. Pitman, 211 Ill. 2d at 519-20; see also Abel v. United States, 362 U.S. 217, 241 (1960) (noting there is nothing unlawful in the government’s appropriation of abandoned property).

As such, abandoned property may be searched and seized without probable cause. People v. Sutherland, 223 Ill. 2d 187, 230 (2006). For abandonment, the State must demonstrate by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the search officer’s position to believe that the defendant relinquished his property interest in the item searched or seized. Pitman, 211 Ill. 2d at 520. As this is an objective test, it matters not if the defendant desires to later reclaim the item. What matters is the external manifestations of the defendant’s intent as judged by a reasonable person who possesses the same knowledge available to the police. 

Here, contrary to defendant’s suggestion, defendant did not thoughtfully hand his gun to his buddy for safekeeping with strict directions or indicate that he would later reclaim the gun. Rather, this is the quintessential abandoned property case, characterized by a fleeing defendant who relinquishes an object because discarding the item might make it easier for him to later claim that he never possessed it.

In this case, defendant physically relinquished his property to his friend, while knowing police were in hot pursuit. Defendant thus exhibited he did not wish to be caught in possession of the gun.

His friend then discarded the gun in an area where anyone could have retrieved it. The total circumstances indicate a reasonable person in the officer’s position would believe that defendant had relinquished his possessory interest in the gun that police later seized.

Because no search or seizure occurs when police take hold of an abandoned item, the validity of the arrest is irrelevant.

Holding

The evidence here was obtained prior to and independent of defendant’s arrest, and as such, the arguments of counsel as to the legality of the arrest merit no further consideration. See Bridges, 123 Ill. App. 2d at 67. Accordingly, the trial court’s conclusion that the gun was the “fruit of the poisonous tree” was demonstrably incorrect. See Johnson, 237 Ill. 2d at 92 (in order for evidence obtained from an illegal arrest to be excluded, there must be some causal nexus between the illegal police activity and the disputed evidence).

Regardless, where the offense can be said to have been committed in the presence of an officer, it has generally been held that the officer may enter the premises without a warrant for the purpose of making a warrantless arrest. People v. Eichelberger, 91 Ill. 2d 359, 369 (1982). [This may not be good law anymore.]

Defendant’s Expectation Of Privacy In The Apartment Unit

Even assuming police conducted a search or seizure in violation of defendant’s fourth amendment rights, defendant would fare no better because he failed to establish a reasonable expectation of privacy in the actual apartment unit and, thus, in the building itself.

The fourth amendment’s constitutional safeguards are personal protections that may not be vicariously asserted and, thus, not every aggrieved defendant can seek to exclude evidence allegedly obtained in violation of the fourth amendment. People v. Ervin, 269 Ill. App. 3d 141, 146 (1994). In Ervin, for example, this court held that the defendant’s weekly presence as a guest in his ex-wife’s home was insufficient to establish a reasonable expectation of privacy, where he did not reside there, was not even a daily visitor, did not store clothing there, and did not spend nights there.

This was in spite of him listing her address on his driver’s license and other identification. See also People v. Parker, 312 Ill. App. 3d 607, 613 (2000) (noting, in Illinois, the storage of personal effects and other indicia of residence demonstrate an expectation of privacy in non-overnight guests); Williams, 186 Ill. App. 3d at 471 (concluding the defendant had no reasonable expectation of privacy in his girlfriend’s apartment where he did not live there, spent only one night a week there, did not take meals or keep clothes there, and had his mailing address elsewhere).

The evidence in this case established defendant’s presence in and access to the apartment unit, but it did not establish whether the apartment was itself locked before he entered, how often he was in the apartment, whether he planned to stay there for more than a brief period of time, or whether he kept any possessions there. The evidence therefore was insufficient to demonstrate he had a reasonable expectation of privacy in the actual apartment unit and in the apartment building itself.

Final Holding

Based on the foregoing, defendant abandoned his handgun without implicating a fourth amendment search or seizure. Alternatively, police acquired probable cause to sustain defendant’s arrest in the apartment unit after observing him hand off the gun and flee.

For the reasons stated, we reverse the judgment of the circuit court granting defendant’s motion to quash his arrest and suppress evidence. We remand the case for further proceedings consistent with this order.