Appeal from the Circuit Court of Madison County. No. 07-CF-1648 Honorable Richard L. Tognarelli, Judge, presiding.
The opinion of the court was delivered by: Justice Cates
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE CATES delivered the judgment of the court, with opinion. Justices Chapman and Stewart concurred in the judgment and opinion.
¶ 1 Following a jury trial, the defendant, Olutosin Oduwole, was convicted of attempt (making a terrorist threat), a Class 1 felony, and unauthorized possession or storage of a weapon in a public building, a Class A misdemeanor. The defendant was sentenced to 5 years in the Illinois Department of Corrections on the felony offense and a concurrent jail term of 364 days and a $1,000 fine on the misdemeanor offense. The defendant appeals only the felony conviction. On appeal, the defendant challenges the sufficiency of the evidence to sustain the conviction, the constitutionality of the statutes under which he was charged, the warrantless search of his vehicle, and the admissibility of certain items of evidence. For the reasons stated herein, we reverse.
¶ 3 On July 24, 2007, the defendant was charged by information with attempt (making a terrorist threat), a Class 1 felony, in violation of section 8-4(a) and section 29-20 of the Criminal Code of 1961 (Code) (720 ILCS 5/8-4(a), 29D-20 (West 2002)), and unlawful possession or storage of weapons in a public-supported building, a Class A misdemeanor, in violation of section 21-6(a) of the Code (720 ILCS 5/21-6(a) (West 2002)).
¶ 4 In August 2007, the defendant was indicted on the same offenses. A second amended indictment involving the same charges was returned in September 2011. Count I of the second amended indictment alleges that the defendant, with the intent to commit the offense of making a terrorist threat, in violation of section 29D-20 of the Code, performed a substantial step toward the commission of that offense, in that he knowingly:
"a) possessed a piece of paper containing the following hand-written words, 'send $2 to .... paypal account if this account doesn't reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!' and;
b) possessed a loaded .25 caliber, Jennings handgun, at 418-1C Cougar Village, Southern Illinois University - Edwardsville; and
c) possessed firearm ammunition on the campus of Southern Illinois University
d) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic handgun; and
e) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic handgun; and
f) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic handgun; and
g) purchased and was awaiting delivery of a Mac 10, .45 caliber, semi-automatic firearm;
h) wrote a note 'send $2 to .... paypal account if this account doesn't reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!'; and
i) left a note in a vehicle on the Campus of Southern Illinois University -Edwardsville which stated 'send $2 to .... paypal account if this account doesn't reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!'; and
j) maintained, used and had access to a Pay-Pal Account; and all in violation of 720 ILCS 5/8-4(a), and against the peace and dignity of the said People of the State of Illinois."
¶ 5 The case was tried in Madison County, Illinois, in October 2011. Police officers from Wood River and Southern Illinois University-Edwardsville (SIU-E) and an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had varying roles in the investigation and testified during the trial. A summary of the testimony and evidence pertinent to the disposition of the appeal follows.
¶ 6 The investigation which resulted in the filing of the aforementioned charges against the defendant in July 2007 arose in the shadows of the April 16, 2007, shootings on the campus of Virginia Polytechnic Institute and State University (Virginia Tech). The record shows that the State and the defendant agreed to a six-paragraph stipulation of the basic facts of the incident at Virginia Tech. The stipulation was admitted as evidence, and it was read to the jury in the State's case on the first day of trial. The stipulation noted that on April 16, 2007, Seung-Hui Cho, a full-time student, armed with a 9-millimeter Glock and a .22-caliber Walther pistol, shot and killed 32 people, students and faculty, on the campus of Virginia Tech, and then killed himself.
¶ 7 The evidence at trial showed that the defendant became the subject of an ATF investigation during the summer of 2007. The investigation was opened after Michael Copeland, a federal firearms licensee and owner of Timberline Gun Sales, reported concerns about his contacts with the defendant to ATF. At that time, the defendant was a 21-year-old student at SIU-E. He had a student housing contract and was living in an apartment on campus during the summer session, which ran from May 20, 2007, through August 5, 2007. During the previous semester, he lived in an apartment in Wood River, Illinois.
¶ 8 Michael Copeland testified that the defendant contacted him by phone on July 3, 2007. The defendant informed Copeland that he had purchased a Vulcan Mac 10 .45-caliber pistol and three Hi-Point CF .380-caliber pistols over the Internet and that he needed a licensed transfer agent to complete the transaction. Copeland agreed to act as the transfer agent. He completed the required federal forms. He also requested a background check on the defendant and it came back approved. Copeland testified that he became concerned about the transaction because the handguns were inexpensive, high-caliber weapons and the defendant had called several times to inquire about whether the handguns had been delivered. Copeland further testified that the Hi-Point .380s have a 10-round magazine and that the Mac 10 is a .45-caliber semiautomatic with a 30-round magazine.
¶ 9 Copeland called ATF on July 12, 2007, to report his concerns. He was advised that an agent would contact him within a few days. At that time, Copeland decided that he would not transfer the weapons to the defendant until he spoke with the ATF agent. Copeland received a call from ATF Agent Paul Heiser on July 16, 2007. Copeland testified that he could not recall the specifics of that conversation. He thought he had expressed concern about the defendant's behavior, but he would not dispute the notes in Agent Heiser's report which indicated that Copeland's only concern was that the defendant might be a straw purchaser. On July 24, 2007, Heiser met with Copeland and took possession of the handguns. Copeland testified that his relationship with the defendant was limited to the purchase of the four handguns. The defendant had not sought to purchase ammunition from or through him. Copeland never met personally with the defendant. He noted that the defendant seemed impatient, but not threatening, during their phone conversations.
¶ 10 Agent Heiser testified that he called Copeland on July 16, 2007. During the conversation, he learned that the defendant had recently purchased three .380 Hi-Point pistols and one .45-caliber MAC 10 semiautomatic pistol over the Internet; that the defendant asked Copeland to act as the transfer agent; that the defendant phoned Copeland several times to inquire about whether the guns had been delivered; and that Copeland became concerned about the defendant because of the frequent calls. Agent Heiser wrote a report in which he noted that the defendant was suspected of "possibly being a ...