Appeal from the Circuit Court of Cook County. Honorable Douglas J. Simpson,Judge Presiding. No. 06 CR 16597
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the opinion of the court. The State appeals the circuit court's order granting defendant Michael Colyar's motion to suppress bullets and a gun seized from the defendant's car. The State argues that after the officers saw a bullet in plain view inside the defendant's car, they reasonably believed the bullet indicated the presence of a gun; thus, the officers acted lawfully in ordering the defendant and his passengers out of the car, securing them in front of the car by handcuffing them, seizing the bullet in plain view in a plastic bag, which contained other bullets, and searching the interior of the car, which resulted in the seizure of a handgun hidden from view.
We affirm the circuit court's ruling because the precipitate police action is not supported by probable cause that a crime had occurred based on a plain-view sighting of a bullet because a bullet is not contraband per se; nor did the Terry investigative 1-09-0323 stop based on the plain-view sighting of the bullet, leading to the recovery of more bullets, escalate into probable cause that the defendant's vehicle contained evidence of criminal activity when the police officers failed to confirm their suspicions that possession of the bullets was a crime.
On October 28, 2008, testimony from a single witness was presented on the defendant's pretrial motion to quash arrest and suppress evidence. William Alcott testified that on June 29, 2006, he was a Homewood police officer partnered with Detective Johnson of the Glenwood Police Department as part of a suburban task force. At about 8:45 p.m., they drove to the Super 8 Motel on a frontage road in East Hazel Crest where they would routinely patrol the motel parking lots "for parties and stuff of that nature." The officers observed a green Honda parked on motel property, not on the public way.
Using photographic exhibits*fn1 depicting the parking lot, Officer Alcott demonstrated how he drove his unmarked Crown Victoria police car onto the motel property, but the Honda blocked him from turning into the south parking lot where the motel entrance is located. After driving around the motel building, Officer Alcott parked the police car and observed the Honda for another "[t]wo to three minutes, tops." The Honda's engine was running, the defendant was in the driver's seat, and there was a second individual in the car. There were no other vehicles nearby and "not a lot of traffic" at the motel's front doors. The officers had not received a call of suspicious or criminal activity from the motel.
After two to three minutes of observing the Honda, Officer Alcott moved the police car closer to the Honda, but kept to the right of the Honda so as not to block it. Both officers exited their car to determine why the Honda was parked there. The officers were dressed in plain clothes, each wearing a vest with a badge, a name tag, and "POLICE" printed across the back. To the casual observer, they were police officers. In addition to their police vests, the officers carried handcuffs and flashlights. The officers were armed, but their guns were not drawn as they approached the Honda. As the officers approached on foot, a third individual came out of the motel and, walking at a normal rate, entered the Honda before the officers arrived.
When Officer Alcott reached the driver's side of the Honda, with Detective Johnson at the passenger side, Officer Alcott told the defendant he was blocking the entrance. The defendant replied he had parked there to pick up someone. Detective Johnson advised Officer Alcott that there was a plastic bag in the center console of the Honda. Officer Alcott shined his flashlight into the car and could "see a bullet sticking up" in a plastic bag on the center console. The cartridge appeared to be a rifle round, about three inches in length. Officer Alcott ordered the three occupants out of the Honda and "Brought the subjects to the front of the vehicle." "[T]hey were all placed in handcuffs immediately." Officer Alcott testified that at that moment the three men were in custody. After the three men were handcuffed and moved to the front of the Honda, Officer Alcott searched the defendant*fn2 and recovered from his pants pocket one live round of what was later determined to be .454 caliber ammunition. The other two men were also searched. After the three individuals were placed "in custody," Detective Johnson recovered the plastic bag from the console of the Honda and found it to contain five rounds of .454 ammunition, including the round seen in plain view.
Officer Alcott testified that after he recovered the cartridge from the defendant's pocket and retrieved the other cartridges in the car, he believed there might be a gun in the Honda. Officer Alcott's partner, Detective Johnson, searched the Honda and recovered a .454 Redwing revolver from underneath the floor mat of the front passenger floorboard. The defendant and his two passengers were transported to the police station where subsequent investigation established the defendant was a registered owner of the Honda and had a valid driver's license.
Following Officer Alcott's testimony, the defense rested, as did the State. On subsequent court dates, the circuit court heard argument and considered case law. On November 6, 2008, the court ruled that the officers' initial approach to the Honda did not constitute a seizure and that the seizure of the bullets in plain-view in the car and from the defendant's pocket were lawful "pursuant to Terry." However, the possession of the bullets was not illegal in itself. The court stated, "Presumably the state's theory is search incident to that lawful arrest that allowed them to conduct that search." The court reasoned that without an inquiry by the officers to determine whether the defendant possessed a firearm owners identification (FOID) card, the possession of bullets per se was not a crime. The court granted the motion to suppress as to the gun, but denied the motion as to the bullets. On December 4, 2008, the State filed a written motion to reconsider the suppression of the gun and the defendant orally moved to reconsider the denial of the suppression of the bullets.
On January 7, 2009, the court reversed its decision as to the bullets: "I believe the officer *** in this case, should have inquired whether there was F.O.I.D. card regarding the seizure of the bullets. Without [an inquiry regarding] an F.O.I.D. card, the bullets are not illegal." As a consequence, the seizure of all the evidence flowed from "the illegal search and custodial search based upon unlawful arrest for possession of ammo without F.O.I.D. card." The State's motion to reconsider, contending that "the officers were justifiabl[y] concerned for their safety in that those bullets could reasonably indicate the presence of a gun," was entered and continued as agreed upon.
The State, however, filed its certificate of impairment and notice of appeal on February 2, 2009, before its reconsideration motion could be ruled upon.
The State divides its single issue on appeal challenging the circuit court's suppression order into six subparts. The State first contends that the officers' approach to the Honda did not implicate the fourth amendment. See People v. Luedemann, 222 Ill. 2d 530, 549, 857 N.E.2d 187 (2006) ("the law provides that a police officer does not violate the fourth amendment merely by approaching a person in public to ask questions if the person is willing to listen"). The circuit court so ruled; that ruling stands as it is not challenged on appeal.
The State next asserts that "the seizure of the bullet in plain view was constitutional where the police believed it constituted evidence of criminal activity, and its presence in the passenger compartment reasonably justified the search for a gun in the vehicle." This subpart presents the crux of the State's contention on appeal. We understand the State to argue that when the officers observed the bullet in plain-view on the Honda's console, they had probable cause to believe a crime had been committed. Based on the existence of probable cause, the officers arrested the defendant, performed a custodial search, which lead to the recovery of another bullet in the defendant's pants pocket. Based on the recovery of the bullets, as the State asserted in its motion to reconsider, "the officers were justified to search the passenger compartment to insure their own safety," citing Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).*fn3
Should we disagree with the State's view of the initial police action, in its last subpart, the State asserts that "the police officers would have inevitably discovered the gun as a search incident to defendant's arrest for possession of ammunition without a valid FOID card." As support, the State contends in its main brief that "the officers would have checked defendant's criminal background prior to releasing him and would have discovered that defendant was a convicted felon. As a convicted felon, defendant could not be in possession of a valid FOID card. See 430 ILCS 65/4(a)(2(ii) [West 2008]; 430 ILCS 65/8(c) [West 2008]. Possession of ammunition without possession of a valid FOID card is a Class A misdemeanor. 430 ILCS 65/2(a)(2) [West 2008]; 430 ILCS 65/14(e) [West 2008]."
Review of a circuit court's ruling on a motion to suppress evidence is subject to a two-part standard. We defer to the circuit court's factual findings unless they are against the manifest weight of the evidence. People v. Cosby, 231 Ill. 2d 262, 271, 898 N.E.2d 603 (2008). If the findings of fact are not contrary to the manifest weight of the evidence, we review de novo whether the suppression of the evidence is warranted given the facts as found by the circuit court. People v. Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799 (2003). We are free to assess the factual findings in relation to the issues presented to draw our own conclusion on whether relief is warranted. Gherna, 203 Ill. 2d at 175.
Section 114-12(e) of the Criminal Code of 1961 mandates that an order granting a motion to suppress "state the findings of fact *** upon which the order *** is based." 725 ILCS 5/114-12(e) (West 2008). The suppression order before us, however, does not contain express findings of fact. Nonetheless, the record makes clear the circuit court's legal ruling: the officers did not have probable cause to search the Honda based on their observation of a bullet in plain-view on the console of the Honda and the recovery of additional bullets, without first inquiring whether the defendant possessed a FOID card, the absence of which would make possession of the bullets illegal; thus, it was not reasonable for the officers to conclude that their observation of the single bullet in the plastic bag on the console, which triggered their actions, was evidence of criminal activity because a bullet is not contraband per se.
This legal conclusion sufficiently informs us of the supporting inferences the circuit court may have drawn to reach its decision, albeit the observable facts, as the circuit court noted, "seem to be not in dispute." "Where more than one inference may be drawn from the facts, even uncontested facts, the question remains one for the trier of fact. [Citation.] The trial court's determination concerning factual matters, including the reasonable inferences to be drawn from the testimony, is entitled to deference [citation], and this determination will not be disturbed on review unless manifestly erroneous." People v. Moore, 286 Ill. App. 3d 649, 652, 676 N.E.2d 700 (1997).
We follow the circuit court's ruling in addressing the State's appeal by considering first whether there was probable cause to search the vehicle resulting in the seizure of the handgun and then, whether the suppression order was properly extended to the bullets that were discovered pursuant to a lawful Terry stop.
As we set out, the circuit court initially granted the defendant's
motion to suppress the handgun because probable cause
did not exist to search the car. The circuit court reasoned
that because the arresting officers did not inquire of the defendant
whether he possessed a FOID card, the presence of the bullets alone
could not give rise to probable cause of criminal activity because
bullets are not contraband per se. Without probable cause, the search
of the car was unlawful. Therefore, the officers acted precipitously
when they removed the defendant (and the passengers) from the car,
secured him at the front of the ...