Court of Appeals of Illinois, First District, Third Division
Defendant’s conviction for unlawful possession of a weapon by a felon based on the possession of ammunition in his home was upheld over his contention that his conviction violated the second amendment because his possession of ammunition was not accompanied by a firearm, since the State’s right to prohibit felons from possessing firearms is coextensive with its ability to prohibit felons from possessing ammunition.
Appeal from the Circuit Court of Cook County, No. 11-CR-7480; the Hon. James B. Linn, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Darrel F. Oman, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion.
¶ 1 Does the unlawful use of weapons by felons statute (720 ILCS 5/24-1.1 (West 2010)), violate a defendant's second amendment rights by criminalizing the knowing possession of firearm ammunition alone, without regard to whether or not the defendant also possesses a firearm?
¶ 2 Defendant draws on District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. __, 130 S.Ct. 3020 (2010), cases in which the United States Supreme Court recognized an individual's second amendment right to bear arms, to argue the unlawful use of weapons by felons statute infringes on that right either facially or as applied to him, and is unconstitutional. But defendant's argument is belied by the Supreme Court's recognition that the second amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Emphasis added.) Heller, 554 U.S. at 635; see also McDonald, 561 U.S. at __, 130 S.Ct. at 3047 ("We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill*** .' We repeat those assurances here." (quoting Heller, 554 U.S. at 626)). As a convicted felon, defendant's second amendment rights may be constitutionally abridged. We uphold defendant's convictions, finding the unlawful use of weapons by felons statute does not violate the second amendment's right to bear arms either facially or as applied to defendant. It would be a strange world indeed for the law to be constitutionally sound in preventing and prohibiting convicted felons from having firearms, but allowing them to keep the very thing that makes firearms deadly.
¶ 3 BACKGROUND
¶ 4 Defendant, Kevin Garvin, was charged with one count of possession of a controlled substance with intent to deliver and one count of unlawful use or possession of a weapon by a felon (UUWF) based on his possession of firearm ammunition.
¶ 5 At the bench trial, Chicago police officer Michael Kelly testified that on April 16, 2011, a team of officers executed a search warrant at Garvin's home, 2124 West 70th Street. They recovered six bags of suspected crack cocaine from Garvin's girlfriend's person. They searched the bedroom, where they recovered more suspected crack cocaine behind an entertainment center. The officers also recovered five live .38-caliber bullets inside of a small red tin case on top of the entertainment center. Next to the tin, the officers found Garvin's state identification card, his Illinois probation card, a watch, a hat, and other personal items. In the bedroom closet, officers recovered a piece of mail from the Department of Health with Garvin's name on it and the address of the premises being searched. At the time of his arrest, Garvin did not have a firearm on his person, and no firearms were recovered from his home.
¶ 6 Garvin was arrested and advised of his Miranda rights. Officer Kelly testified Garvin then stated that the bullets and the bags of suspected crack cocaine found on his girlfriend belonged to him. He said the bullets "were from the old days" when he had "used them for protection." Officer Kelly also testified he never saw Garvin handle the recovered bullets.
¶ 7 The parties stipulated that a proper chain of custody of the physical evidence was maintained. The parties further stipulated that a forensic chemist tested and weighed the suspected crack cocaine. The substance tested positive for crack cocaine and weighed 5.2 grams. The State introduced Garvin's October 14, 2004, certified conviction in case number 04 CR 5469 for the offense of possession of a controlled substance with intent to deliver. Garvin was found guilty of the lesser included offense of possession of a controlled substance and unlawful use or possession of a weapon by a felon. The court inquired about Garvin's criminal history and the State responded that Garvin was on probation for one of his four previous convictions. Defense counsel acknowledged that defendant had violated probation and accepted a plea of a sentence of 26 consecutive months.
¶ 8 The trial court denied defendant's motion for a new trial and sentenced him to concurrent terms of six years and six months, and three years. Defendant's ...