The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and Theis concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion.
Defendant was charged by information with two counts of aggravated unlawful use of a weapon. Count I alleged that defendant carried in his vehicle an "uncased, loaded, and immediately accessible" firearm. Count II alleged defendant carried in his vehicle a firearm and "had not been issued a currently valid Firearm Owner's Identification Card." A jury, in the circuit court of Cook County, returned a general verdict of guilty and the appellate court affirmed. No. 1--07--1490 (unpublished order under Supreme Court Rule 23). In this appeal, we must determine whether defendant's conviction for aggravated unlawful use of a weapon is proper under either count charged. For the reasons that follow, we answer that question in the negative and, therefore, reverse the judgment of the appellate court.
The record reveals the following. On May 8, 2005, defendant, Leonard Holmes, a resident of Indiana, was stopped by Chicago police officers for a traffic violation on 115th Street in Chicago. At that time, a gun was recovered from a backseat armrest in his car. This armrest separated the two back seats and contained a storage compartment that closed with a latch. The compartment could be folded up into the seat or left in a down position. At the time the gun was recovered, the compartment was closed and latched.
On May 18, 2005, a two-count information was filed charging defendant with aggravated unlawful use of a weapon. The first count alleged that defendant carried an "uncased, loaded, and immediately accessible" firearm in his vehicle in violation of section 24--1.6(a)(1)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24--1.6(a)(1)(3)(A) (West 2004)). The second count alleged defendant carried in his vehicle a firearm "at a time when he was not on his own land or in his own abode or fixed place of business" and had "not been issued a currently valid Firearm Owner's Identification Card" in violation of section 24--1.6(a)(1)(3)(C) (720 ILCS 5/24--1.6(a)(1)(3)(C) (West 2004)).
Prior to trial, defendant filed a motion to suppress. At the hearing on defendant's motion, Officer Eric Gonzalez testified that he stopped defendant for a lane violation. At that time, Gonzalez was riding in a squad car with his two partners, John McCarthy and Wilfredo Lapitan. Gonzalez testified he approached the driver's side door and observed an open bottle of beer on the backseat passenger side floor. After defendant provided his license and insurance information, Gonzalez ordered defendant out of the car. According to Gonzalez, as defendant exited, he spontaneously commented, "Hold on, hold on. I'm just letting you know now I have a gun in the car." Gonzalez then took defendant into custody.
Officer Gonzalez testified that defendant told the police officers where the gun was located. Officer McCarthy retrieved the gun, unloaded it, and then handed it to Gonzalez. According to Gonzalez, the armrest was in the down position, but not open. He further testified that defendant's driver's seat was "leaned back very far" and that defendant would have access to the armrest.
Defendant testified at the suppression hearing that the police officers stopped him, came up to the car, told him to turn the car off and get out, and advised him he had been stopped because of his tinted windows. Defendant and a friend who was riding with him were ordered out of the car. According to defendant, it was not until he was standing near the rear of his car that the police noticed the beer. Defendant testified that the beer was not open. Defendant further denied telling the police there was a gun in the car and, according to defendant, he never gave them consent to search his car.
Defendant admitted at the suppression hearing there was a gun in the backseat armrest. However, he testified that the armrest was folded up, not in the down position, as Officer Gonzalez stated. Defendant further testified the gun was not loaded. Rather, the police found the clip in his pants pocket after he had been arrested.
On cross-examination, defendant denied that his seat was reclined all the way back, but stated it was reclined somewhat due to his height--6 foot, 2 inches.
Officer Wilfredo Lapitan's testimony essentially confirmed Officer Gonzalez's testimony except that he provided no testimony as to the position of the armrest or whether the gun was loaded or not. The trial court denied defendant's motion to suppress and the matter proceeded to trial.
At trial, Officer Gonzalez testified that after stopping defendant, he and Officer McCarthy approached defendant's car, spoke with defendant, and asked for his license and insurance information, which defendant provided. Gonzalez said that, as he was speaking with defendant, he noticed an open bottle of beer in the backseat of the car. He then asked defendant to exit the car. At that time, according to Gonzalez, defendant made his spontaneous statement about the gun. Gonzalez stated that he immediately cuffed defendant, patted him down, and directed him to the rear of the car. Defendant told the officer he had an Indiana permit for the gun, which he did not have with him. Defendant then told Gonzalez where the gun was. At that time, McCarthy asked defendant's passenger to step out of the car. Gonzalez and McCarthy got into the car and McCarthy retrieved the gun, unloaded it, and handed it to Gonzalez. Defendant was then placed under arrest.
On cross-examination, Officer Gonzalez admitted that all of defendant's windows were tinted. He stated he observed the beer bottle when he was standing outside the driver's side door. He stated the bottle was not inventoried.
After Officer Lapitan testified in accord with his testimony at the suppression hearing, the State rested.
Twice during the presentation of the State's case, defense counsel sought leave to offer defendant's Indiana handgun permit into evidence. Counsel argued this permit was a basis for dismissal of the charge of aggravated unlawful use of a weapon under count II because of a provision contained in the Firearm Owners Identification Card Act (FOID Card Act). 430 ILCS 65/2(b)(10) (West 2004). Under the FOID Card Act, an out-of-state resident who possesses a valid permit or license from his state is not required to obtain a FOID card. It was defendant's position that, because he possessed a valid permit from Indiana, he could not be prosecuted for aggravated unlawful use of a weapon. The trial court concluded, as a matter of law, that defendant's possession of an Indiana permit was not a substitute for a FOID card and, therefore, it was irrelevant. Accordingly, the trial court ruled that defense counsel could not enter defendant's permit into evidence.
Defendant then testified on his own behalf. He stated that, on the day of his arrest, it was Mother's Day, and he had been out to dinner with his wife and in-laws. After he dropped his wife off at home, he left Indiana with a friend to drop a gift off at his mother's home in Chicago. While returning home to Indiana, he was stopped by the Chicago police.
Defendant testified that Officer Gonzalez approached his car on the driver's side and immediately ordered him out of the car. Gonzalez did not ask for defendant's license or insurance. When defendant got out of the car, he was told to go to the back of his vehicle. Before doing so, defendant told the police there was a gun in the car for which he had a permit. At that time, according to defendant, Gonzalez yelled, "He's got a gun." Gonzalez grabbed defendant's belt buckle, handcuffed him, walked him to the rear of the car, and turned him over to Officer Lapitan, who placed defendant in the squad car. Defendant further testified that he had just purchased the gun about three days before and that it was not loaded and that the clip was in his pocket.
According to defendant, Officers Gonzalez and McCarthy searched for the gun, could not find it and came back to him and asked where it was. Defendant told them it was in the back armrest. The police then retrieved the gun, came back to defendant, and asked where the clip was. Defendant told them it was in his pocket. The officers then recovered the clip from his pocket.
On cross-examination, defendant stated he put the gun in his car over the weekend because he planned to go to the range to learn how to shoot it since he had not yet fired it. He forgot the gun was in his car and only remembered after he left his house. When he ...