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Victor D. Quilici
(847) 298-2566 victorq@ameritech.net |
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| Two decisions dealing with seizures of firearms from motor vehicles, after traffic stops, show that some Justices are not buying into the State’s attempt to stretch time-honored theories inferring a knowing possession in drug cases to those involving firearms. Also, a recent U.S. Supreme Court decision regarding the use of dogs to sniff a vehicle during a routine traffic stop may not have the far-reaching evil effects some have feared. | ||
| The 2nd District Appellate Court reversed a lower court conviction where the defendant was found in possession of a firearm found in the glove compartment of his deceased brother’s car which he was driving. Although the charge was unlawful use of a weapon by a felon, the ruling is important to the ordinary citizen who may be driving a vehicle with absolutely no knowledge of the fact that it contains a firearm placed there by the owner or other user of the vehicle. This case shows that mens rea, or knowledge will have to be proven, and inference of knowing possession will not automatically be applied where the seizure involves a firearm rather than drugs. | ||
| In People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005), the facts showed the defendant was driving his deceased brother’s car for the first time just two weeks after the latter’s death, having been asked to do so by his father, who testified that he asked the defendant to use the vehicle to pick up video games at a nearby location. | ||
| The arresting officers pulled over the defendant because the vehicle had an expired registration. Because the defendant’s license was found to be suspended, he was placed under arrest, the car searched, and a loaded handgun found in the glove compartment enclosed in a sock. | ||
| While the prosecution had in its favor a constructive possession theory based on the defendant’s exclusive control of the vehicle, the appellate court did not find it was bound to infer knowledge of the possession simply because of the defendant’s control over the area where the firearm was found. | ||
| Distinguishing the facts in this case from others relied upon by the prosecution, which dealt with drug contraband, the Appellate Court held that it would not treat the firearm as contraband per se, and, therefore, infer that control of the area where the firearm was found in gives rise to the inference that the defendant knowingly possessed the handgun. | ||
| The following are brief highlights of the Court’s findings with some omissions not noted in the quoted text: | ||
| “ . . . Unlike the cases referred to above [involving drugs] this case involved the seizure of a handgun from a vehicle. A handgun is not per se contraband. While it is true that a felon’s knowing possession of a handgun is prohibited, the handgun itself is not per se contraband as are illegal drugs and AK-47 assault rifles. Additionally, the handgun was recovered from a car that defendant was driving but did not own. An automobile is quite dissimilar to a person’s residence, especially when the driver is not the owner. | ||
| “. . . Because the State may not rely on an inference of knowledge stemming from defendant’s presence in the car, we must determine if the State presented other evidence of knowledge. Although it is apparent that no direct evidence was offered, we look to the factors outlined in People v. Bailey, 333 Il. App. 3d 888 (2002), to determine whether the State offered circumstantial evidence from which defendant’s knowledge could be inferred. | ||
| [In Bailey, a handgun was found hidden under a car seat, and the Court relied upon a four-factor test derived from People v. Davis, 50 Ill. App. 3d 163, for determining when a defendant’s knowledge of a weapon in a car could be inferred: (1) the visibility of the weapon from the defendant’s location in the vehicle; (2) the amount of time in which the defendant had an opportunity to observe the weapon; (3) gestures or movements by the defendant that would suggest an effort to retrieve or conceal the weapon; and (4) the size of the weapon.] | ||
| “. . . Applying the Bailey factors, we continue to find that the State’s evidence proved little more than that the defendant was in the car where the gun was found. The gun was found inside a sock in the glove compartment. It obviously would not be visible to the defendant when he drove. The uncontradicted evidence showed that the car belonged to defendant’s deceased brother. . . . Moreover defendant’s father’s testimony showed he had been driving the car for only a few minutes before he was arrested. Both defendant’s father and brother testified that, to their knowledge, defendant had not used the car previously. Edwards [police officer] testified that defendant did not make any furtive movements as if he were attempting to conceal the gun. Finally, the weapon was a handgun that was small enough to fit into a sock. Based on these facts we find that no rational trier of fact could have found, beyond a reasonable doubt, that defendant knowingly possessed the handgun. | ||
| “ . . . For the foregoing reasons, the judgment of the Circuit Court of Du Page County is reversed.” | ||
| * * * * * * | ||
| People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005) | ||
| In another search and seizure of firearms after a traffic stop, before the Second District Appellate Court, the prosecution argued that “furtive movement” of a passenger in a vehicle satisfied the 3rd element under Bailey principles (above), citing, instead, an earlier decision, People v. Rodriquez, 154 Ill. App. 3d 401. The Court, however, focused on the elements of the traffic stop in light of Gonzales principles (People v. Gonzales, 204 Ill. 2d 220) to determine if the line of questioning of the defendant, after the traffic stop, impermissibly prolonged the detention or changed the fundamental nature of the stop, which would constitute a Fourth Amendment violation. | ||
| The Court also viewed the stop in light of Terry principles (Terry v. Ohio 392 U.S. 1, 88 S. Ct, 1868) In this case, the driver, as in Hampton ( reported above) was not the owner of the vehicle and was driving her sister’s car. | ||
| Of significance, and raising a question as to what impact it may have had upon the officer’s insistence to a search of the vehicle was the fact that the driver showed him her FOID card, and later admitted to having an unloaded gun under the front seat of the vehicle. | ||
| The prosecution also cited Illinois v. Caballes ( see archives), where the U.S. Supreme Court held that police officers do not need separate, reasonable, articulable suspicion to walk a drug dog around a vehicle during a routine traffic stop. The Court here, however, distinguished Caballes on the facts in this case. Following a summary of the facts, are highlights of the Court’s findings with some omissions not noted in the quoted text: | ||
| Summary of Facts:: Some time shortly after 1:00 a/m defendant was pulled over while driving her sister’s car with two passengers. The accounts of what happened when the officer’s approached the vehicle varied, although the trial judge appears to have believed the defendant’s and her passengers’ version—that is, when the officers approached the car each held a revolver in one hand and a flashlight in the other, and one officer stated: “Freeze! Everyone put their hands in the air! One of the officer’s immediately asked the defendant if there was anything illegal in the car. She then inquired if the stop was traffic related and the officer told her it was because a rear license plate light was out. | ||
| When asked for her license and proof of insurance, of which defendant had neither, she produced her FOID card, She testified that the officer pulled her out of the car and asked if there were any weapons inside. After a minute or so of questioning about weapons, the defendant admitted she had a gun in the car, and a drug dog was retrieved from a canine unit vehicle that had been called to the scene. The officers searched the car and found the gun she had admitted to under the driver’s seat with ammunition in the center console, and two other handguns of which defendant said she knew nothing about. | ||
| One of the officers testified that the car was traveling from an area known for high drug activity. Also, that one passenger, seated in the rear of the auto, was seen bending forward just after the vehicle was pulled over, and had straightened up with his hands between his legs as the officers approached, and the defendant was visibly shaking at the time. Further, that although the defendant did not consent to a search of the vehicle, he informed her that he would search anyway based on her conduct and that of the rear seat passenger. Meanwhile, the dog had alerted at the driver’s side door, and the trainer/officer advised the other officers that a search for narcotics should be conducted. The other two guns were then located within the vehicle along with cannabis stems and seeds. | ||
| The trial court granted the defendant’s motion to quash and suppress evidence that was seized during the traffic stop. Affirming the trial judge’s ruling the Appellat Court said: | ||
| “ . . . [Officer] Voudrie’s testimony shows that he knew defendant was driving from a high drug area, and his police report shows that he suspected that the car contained illegal narcotics. This evidence supports a reasonable inference that the officers conduct, from the outset of the detention, focused on drug interdiction and was thus unrelated to the purpose of the stop (burnt out light). | ||
| “Other evidence on the Terry issue also supports inferences in defendant’s favor. The sole justification for a Terry stop is protection of the police officer and others in the vicinity. People v. Sorenson, 196 Ill. 2d 425 (2001). Yet when Voudrie observed Bell [the rear seat passenger] lean forward [the conduct that allegedly justified a Terry search], he did not search the car at all. Instead, according to his testimony, he proceeded to investigate the burnt out light. As noted above, defendant testified that Voudrie’s first question was about contraband rather than a traffic infraction. | ||
| “ . . . The State cites Illinois v. Caballes, No. 03-923 (1/24/05), where the U.S. Supreme Court held that police officers do not need a separate reasonable , articulable suspicion to walk a dog around a vehicle during a traffic stop. At the same time, however, the State argues that Voudrie’s use of the dog was supported by a separate reasonable suspicion. More importantly, the instant case simply does not present a Caballes scenario. The dog was not walked around the car merely to see if a search could occur; Voudrie had already decided to conduct the search, and the dog was his tool to do so. Thus, if the decision to search does not satisfy fourth amendment principles, the decision cannot be saved merely because Voudrie used a dog. | ||
| “In light of the foregoing discussion, we decline to reverse the trial judge’s ruling. The judgment of the Will County circuit court is affirmed.” | ||
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