Lisa Madigan, Attorney General, of Springfield, and Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Mary P. Needham, Assistant State's Attorneys, of counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Ginger Leigh Odom, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Chief Justice Garman concurred in part and dissented in part, with opinion.
[¶1] Following a bench trial in the circuit court of Cook County, defendant was convicted of multiple firearm offense counts arising from his possession of a single loaded handgun while he was a felon. This appeal requires us to decide whether those convictions were authorized under the applicable criminal statutory provisions and the one-act, one-crime rule.
[¶2] A majority of the appellate court answered that question in the negative and concluded that defendant could receive only one conviction " based on the same physical act of possessing one loaded firearm." The court also rejected defendant's fourth amendment challenge to his arrest and recovery of the loaded firearm. 2011 IL App. (1st) 093587-U.
[¶3] Before this court, the State seeks reversal of the appellate court's judgment, arguing that multiple separate convictions for firearms offenses based on the possession of a single loaded firearm by a felon are statutorily authorized. Defendant filed a cross-appeal, renewing his fourth amendment challenge to his arrest and the recovered evidence.
[¶4] For the reasons that follow, we reverse in part and affirm in part the appellate court's judgment.
[¶5] I. BACKGROUND
[¶6] In the early afternoon of October 30, 2008, police officers arrested defendant, Antonio Almond, at a liquor store located at 330 East Pershing Road in Chicago. Officers recovered a loaded firearm from defendant. Ultimately, defendant, who had prior felony convictions, was charged with multiple firearm offenses relating to possession of a firearm by a felon.
[¶7] Prior to trial, defendant filed a motion to quash arrest and suppress evidence. At the hearing on his motion, defendant testified that at about 1 p.m. on the day of his arrest he entered the liquor store to purchase alcohol. Shortly thereafter, two police officers entered the store. Although they were dressed in regular plain clothes, defendant recognized them as police officers because their badges were visible. According to defendant, the officers immediately told him to " get on the gate," referring to the security gate used by store employees. The officers did not show defendant an arrest or search warrant. Defendant testified that after he placed his hands on the gate, one of the officers frisked him and grabbed his waist. During that encounter, the officer recovered
a firearm from defendant's waistband. At the hearing, defendant conceded that inside the store he possessed a handgun loaded with six live rounds of ammunition.
[¶8] Defendant denied that the officer asked him what he was doing inside the store. Defendant also denied that the officer asked him, prior to the frisk, whether he possessed any contraband. Defendant further denied that he ever told officers that he possessed a firearm. Defendant specifically denied saying " I just got to let you know I got a gun on me." Defendant explained that he would not tell a police officer that information because he knew " it's wrong to have a gun."
[¶9] On cross-examination, defendant testified that the officers did not initially identify themselves as police officers, did not tell him to stop, and did not produce their weapons until after they discovered he was armed. The officers arrested defendant after they recovered the gun from him.
[¶10] The trial court found that defendant met his burden on the motion. The State then presented evidence of defendant's prior felony convictions for drug offenses. The State also presented the testimony of Chicago police officer James Davis. Officer Davis and his partner, Officer Carl Weatherspoon, were in their marked squad car when dispatch informed them that an anonymous individual had reported that several men were selling illegal drugs both outside and inside a liquor store at 330 East Pershing Road. The officers drove to that location and saw defendant and four other men outside the liquor store.
[¶11] The officers parked their squad car and exited their vehicle. After their arrival, the group of men outside the store, including defendant, dispersed. Defendant and two other men went inside the liquor store. Another man walked away on Pershing Road, and a second man walked away through an alley.
[¶12] Officer Davis and his partner went inside the store and approached defendant and the two other men. Officer Davis spoke to defendant, while his partner spoke with the other men. Officer Davis asked defendant what he was doing inside the store and whether defendant was in possession of any narcotics or weapons. Defendant replied, " I just got to let you know I got a gun on me." Upon receiving this information, Officer Davis frisked defendant and recovered a gun from the waistband of defendant's pants.
[¶13] On cross-examination, Officer Davis explained that he did not know the identity of the informant and did not know whether the informant was reliable. The informant described the individuals selling illegal drugs as " several male blacks," but did not otherwise provide specific identifying information or physical descriptions. Officer Davis stated defendant was not acting in a suspicious manner when the officers approached him. Officer Davis indicated in his police report that he approached defendant to conduct a " field interview."
[¶14] In rebuttal, defendant called Officer Carl Weatherspoon. Officer Weatherspoon heard Officer Davis talking to defendant, but he did not know what was said because Officer Weatherspoon was focused on his own conversation with the other two men.
[¶15] In closing statements, defendant relied heavily on the United States Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), holding that an anonymous tip lacking any indicia of reliability does not justify a Terry stop and frisk. Defendant argued that the anonymous tip here was not corroborated and had no indication of reliability and, therefore, did not provide reasonable
suspicion to support Officer Davis's conduct under Terry. Defendant further argued that Officer Davis's account of the incident " strain[ed] credibility" because it was unlikely that an individual who illegally possessed a firearm would freely volunteer that information to a police officer.
[¶16] The State argued that Florida v. J.L. was factually distinguishable because in that case the police officer, acting on an anonymous tip that a man at a bus stop wearing a plaid shirt was in possession of a gun, stopped the alleged offender, frisked him, and recovered a gun. Here, in contrast, Officer Davis credibly testified that he approached the defendant for a field interview after arriving at the liquor store to investigate the anonymous tip about illegal drug sales at that store. Officer Davis asked defendant general questions about why he was at the store and whether he possessed any contraband. The State argued that this interaction did not constitute a Terry stop. Once defendant told officers that he was in possession of a firearm, the officers were justified in recovering that firearm. The recovered firearm also provided probable cause to arrest defendant. Following arguments, and with defendant's agreement, the court continued the matter to consider the application of Florida v. J.L.
[¶17] Ultimately, the trial court denied defendant's motion to quash arrest and suppress evidence. The court concluded that Florida v. J.L. was distinguishable because Officer Davis testified that defendant voluntarily told him that he was in possession of a firearm before Officer Davis recovered the firearm. The court further explained that it did not believe the encounter between Officer Davis and defendant constituted a Terry stop, unlike in Florida v. J.L.
[¶18] Thus, in the trial court's opinion, the issue was " really more a matter of credibility rather than a matter of law" because the court was presented with two conflicting accounts of the incident. Assessing the credibility of the witnesses, the court noted that defendant was a convicted felon. The court then found that the officers' testimony was clear and credible and was not substantively impeached. Consequently, the court accepted the State's version of the incident and concluded that the officers acted properly after defendant indicated he was in possession of a firearm.
[¶19] Defendant filed a motion to reconsider, and the trial court denied that motion. The matter then proceeded to a bench trial.
[¶20] At defendant's bench trial, Officer Davis testified consistently with his testimony at the pretrial suppression hearing. Officer Davis did, however, elaborate on his interaction with defendant inside the store. Officer Davis explained that defendant and the other two men were located next to a wall at the back of the store. Officer Davis denied that defendant and the other men were not free to leave when he entered the store. Officer Davis further denied that he intended to search the men when he approached them.
[¶21] After approaching defendant and the other two men, Officer Davis asked them what they were doing inside the store, and they replied that they were going to buy chips. Officer Davis next asked them to explain why they were at the back of the store instead of near the register if they wanted to buy chips. Neither defendant nor the other two men offered any response. Officer Davis then asked them whether they possessed any weapons or narcotics. Only defendant replied, stating that " I just got to let you know I got a gun on me." Defendant reached toward his waistband, but Officer
Davis instructed defendant that the officer would retrieve the weapon. Officer Davis recovered an uncased and loaded .38-caliber firearm from defendant's front waistband.
[¶22] To support the prior felony convictions alleged in the indictment, the State introduced certified copies of defendant's 2008 Class 4 felony conviction for possession of a controlled substance and his 2004 and 2003 Class 2 felony convictions for manufacture or delivery of a controlled substance.
[¶23] The State then rested its case. Defendant did not present any evidence. Following closing arguments, the trial court found defendant guilty on all counts. The court sentenced defendant to the statutory minimum of six years' imprisonment for the most serious offense, armed habitual criminal, and to three years' imprisonment on the remaining counts, to be served concurrently.
[¶24] On direct appeal, a divided appellate court affirmed in part and reversed in part the circuit court's judgment. 2011 IL App. (1st) 093587-U. In relevant part, the court rejected defendant's fourth amendment challenge to his arrest and the evidence, albeit for different reasons. The majority reasoned that Officer Davis engaged in a proper Terry stop based on reasonable suspicion. 2011 IL App. (1st) 093587-U, ¶ 70. The concurring justice concluded that the incident between Officer Davis and defendant was a consensual encounter that did not implicate the fourth amendment. 2011 IL App. (1st) 093587-U, ¶ 134 (Garcia, J., concurring in part and dissenting in part).
[¶25] The court disagreed, however, on whether defendant could receive separate convictions based on the simultaneous possession of a firearm and ammunition in a single loaded firearm. Notably, the parties agreed that defendant could be convicted of being an armed habitual criminal based on his possession of a firearm (Count I) and unlawful use of weapons (UUW) by a felon based on his possession of firearm ammunition (Count III). 2011 IL App. (1st) 093587-U, ¶ ¶ 74-76. The majority of the court, however, refused to accept the parties' agreement. 2011 IL App. (1st) 093587-U, ¶ 74. Applying one-act, one-crime principles and construing the applicable statutory language, the majority concluded that the statute was ambiguous and found that only one offense is permitted for a single loaded firearm. 2011 IL App. (1st) 093587-U, ¶ ¶ 77-86. Accordingly, the majority affirmed defendant's conviction on the most serious offense, armed habitual criminal, but vacated his conviction for UUW by a felon. 2011 IL App. (1st) 093587-U, ¶ 86.
[¶26] Justice Garcia dissented on the latter portion of the court's opinion, arguing that the majority failed to consider that its construction of the statute and application of the one-act, one-crime rule had been rejected in ...