Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, No. 11-C6-60259; the
Hon. Luciano Panici, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza,
Cassidey Davis Keilman, and Carolyn R. Klarquist, all of
State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Mary P. Needham, and Haley Peck, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE MASON delivered the judgment of the court, with
opinion. Justices Fitzgerald Smith and Lavin concurred in the
judgment and opinion.
1 Defendant Marlon Franklin was charged with eight counts of
aggravated unlawful use of a weapon (AUUW) and six counts of
unlawful use of a weapon by a felon (UUWF). The jury
convicted Franklin of two counts of UUWF, and the trial court
later sentenced him to two concurrent six-year terms of
imprisonment. He appeals, challenging the sufficiency of the
evidence to demonstrate his possession of the firearms and
the trial court's denial of his motion to suppress
evidence. Because we find that the motion to suppress should
have been granted, we reverse.
2 On March 5, 2011, East Hazel Crest police received a call
regarding a theft of cash from room 106 of the Super 8 Motel
located at 17220 South Halsted Street. Officer Kenneth Vallow
and his partner, Officer Hankins, went to room 106 and met
Jasmine Ross, the victim of the theft. Ross described the
perpetrator as a 26-year-old, 6-foot-3-inch, 300-pound black
male going by the nickname "DB." Ross told the
officers they could find "DB" in room 301 and that
"DB" was "known to be armed." As the
officers approached room 301, they encountered Franklin
leaving the room. After the officers identified themselves,
Franklin told the officers that room 301 was rented in his
name. When asked if he was known as "DB, " Franklin
told the officers that DB was in his room.
3 Franklin used his keycard to let the officers into the
room. Vallow used a towel to prop open the door. Once inside,
the officers observed a large man matching Ross's
description sleeping on one of the two beds. The man woke up
and the officers began questioning him. Meanwhile Franklin
remained standing by the window. On the nightstand between
the two beds, Vallow observed a clear plastic bag containing
a green, leafy substance, which appeared to be cannabis, and
handed the bag to Hankins. Vallow did a quick search of the room
and the bathroom and noticed nothing was out of place in the
bathroom. In particular, Vallow looked at the ceiling tiles
in the bathroom, as experience told him that contraband or
weapons were often concealed there. The ceiling tiles
4 Hankins radioed for a drug sniffing dog. Vallow observed
that DB (later identified as David Lathan) was becoming
"very nervous" and "tense" and that
Franklin also became fidgety. DB then jumped over the bed,
pushed past the officers, and ran out of the open door of the
room. DB ran down the stairs and proceeded to carjack a
vehicle from two individuals who were leaving the parking
lot. Hankins and Vallow both gave chase, leaving Franklin
alone in the room.
5 A few minutes later, Vallow realized that Franklin was
still in the room and returned to room 301. Vallow walked
through the still propped open door to see Franklin exiting
the bathroom with a "surprised" expression on his
face. Franklin did not tell Vallow he was not permitted to
enter the room or ask him to leave. Upon examining the
bathroom, Vallow observed that the ceiling tiles had been
pushed up two inches. Vallow handcuffed Franklin, had him sit
on the bed, and inspected the ceiling tiles in the bathroom.
Standing on the toilet, Vallow reached up and felt two
plastic bags that he believed contained guns. At that point
Vallow did not pull the bags down. Vallow brought Franklin
down to his squad car, secured him in the backseat, and went
back to the room, recovering from above the bathroom ceiling
two plastic bags containing a Lorcin .38-caliber automatic
weapon, an extra ammunition clip for that weapon, a Hi-Point
9-millimeter firearm with a full clip, and $153 in cash. The
cash was returned to Ross and the guns were inventoried.
Vallow never observed Franklin in the bathroom or reaching up
to the ceiling tiles.
6 Based on this evidence, the trial court denied
Franklin's motion to quash arrest and suppress evidence.
The court ruled that the presence of suspect narcotics in
plain view was probable cause for Franklin's arrest and
that Vallow had probable cause to search the ceiling tiles
because of their notable change in the three-minute period
during which Vallow left the room.
7 The matter proceeded to trial and the parties stipulated to
Franklin's status as a felon. Vallow's testimony was
consistent with his prior testimony on the motion to
8 Franklin's motion for a directed verdict was denied,
and the defense rested without calling any witnesses or
introducing any other evidence. The ...