Firearm Laws |
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Search & Seizure |
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Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
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People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
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United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
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People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
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HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
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People v. Dieppa, 357 Ill.
App. 3d 847
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ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
on
writ of certiorari to the Supreme Court of Illinois. 03-923
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DEVENPECK et al. v. ALFORD No.
03-710
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People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
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People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
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People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
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People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
March 2006)
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People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
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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.
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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.
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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.
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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.
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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.
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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.
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The following are brief highlights of the Court’s findings with some omissions
not noted in the quoted text:
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“ . . . 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.
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“. . . 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.
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[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.]
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“. . . 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.
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“ . . . For the foregoing reasons, the judgment of the Circuit Court of Du Page
County is reversed.”
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People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
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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.
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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.
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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.
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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:
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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.
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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.
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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.
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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:
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“ . . . [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).
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“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.
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“ . . . 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.
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“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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