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People v. Horton

Court of Appeals of Illinois, First District, Second Division

March 31, 2017

MARKELL HORTON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 11 CR 14395 The Honorable Lawrence E. Flood, Judge, presiding.

          PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion. Justice Pierce dissented, with opinion.



         ¶ 1 Chicago police officers, in their mission to "serve and protect, " must remove from the city's streets illegal guns, which claim hundreds of lives each year and imperil the public's safety and security. Presumably acting on that laudable desire, an officer had a hunch, based on seeing "a metallic object" in Markell Horton's waistband, that Horton might have a handgun and pursued him. Eventually, police found a handgun hidden under a mattress in a bedroom where they found Horton, and he was charged with possession. But changes in Illinois law (in part mandated by United States Supreme Court rulings protecting the right to keep and bear arms) now hold that it is not illegal to carry a concealed handgun, as long as certain procedures are followed.

         ¶ 2 As judges, we are stuck between a hammer and the anvil. On the one hand, we are ever mindful of, and horrified by, the level of gun violence that continues to plague the City of Chicago. We feel confident in saying that all members of the judiciary wish for reformative solutions. But we also are mindful of our limited role in a constitutional system. We cannot sidestep or disregard instruction from both the United States and Illinois Supreme Courts to achieve a specific outcome. When we hold that precedent dictates the result here, it is not because we are naïve, or "soft on crime." On the contrary, it is because we must follow, not rewrite, the established law and the facts in evidence.

         ¶ 3 We now turn to the specifics of Horton's appeal. Horton argues four issues: (i) the trial court improperly denied his motion to quash arrest and suppress evidence; (ii) the trial court improperly barred him from introducing registration and ownership evidence of the weapon, both before and after the State "opened the door" to the evidence; (iii) reasonable doubt; and (iv) ineffectiveness of trial counsel. In addition, this court ordered supplemental briefs on the issue of probable cause to pursue Horton "in view of the rulings in District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 741 (2010); People v. Aguilar, 2013 IL 112116; and People v. Burns, 2015 IL 117387."

         ¶ 4 We hold that the trial court improperly denied Horton's motion to quash arrest and suppress evidence. The probable cause to pursue Horton was based on the officer's belief that Horton possessed a gun in violation of the unlawful use of a weapon statute (720 ILCS 5/24-1.1(a) (West 2010)), later found unconstitutional on its face and void ab initio. Aguilar, 2013 IL 112116; Burns, 2015 IL 117387. As a result, the search and seizure of the gun was unlawful and the trial court erred when it denied Horton's motion to quash his arrest and suppress the evidence.

         ¶ 5 BACKGROUND

         ¶ 6 The State charged Horton with seven gun-related counts, but elected to proceed only on the charge of Armed Habitual Criminal (knowingly possessing a firearm after being convicted of two qualifying felonies), a Class X felony. 720 ILCS 5/24-1.7(a), (b) (West 2010).

         ¶ 7 Motion to Quash Arrest and Suppress Evidence

         ¶ 8 Before trial, Horton filed a motion to quash the arrest and suppress evidence. He argued that the police had no warrant and no probable cause to arrest him, and, therefore, the evidence connecting him with a crime came within the purview of the Exclusionary Rule and should have been suppressed as the fruit of the illegal arrest. See Mapp v. Ohio, 367 U.S. 643 (1961) and Wong Sun v. U.S., 371 U.S. 471 (1963).

         ¶ 9 The only witness at the hearing, Chicago police officer Roderick Hummons, testified that around 3 p.m. on August 11, 2011, while on patrol in an unmarked police car, he and his partner, Officer Nyls Meredith, drove past a house at 6901 East End Avenue, Chicago. Hummons saw two people on the porch, and Horton standing in front of them. At that point, Hummons thought Horton lived in the house. Hummons did not see Horton violate any law.

         ¶ 10 Horton looked in Hummons' direction. When he did, Hummons noticed a "metallic object in his waistband." According to Hummons, he told Meredith, who was driving, to stop. As the officers were getting out, Horton turned and rushed inside the house. Hummons claimed he found a set of keys on the ground, and about five minutes later, used the keys to unlock the door. Hummons and Meredith went inside.

         ¶ 11 Hummons went upstairs because he heard a noise there. He saw Horton in one of the bedrooms crouched next to a bed. Hummons thought Horton was "concealing an item." Hummons detained Horton. Meredith recovered a handgun from under the mattress. The handgun appeared to Hummons to be what he saw sticking out of Horton's waistband. Horton told Hummons that he did not live at the house, the bedroom was not his, and neither was the gun.

         ¶ 12 Defense counsel questioned Hummons about his preliminary hearing testimony, the transcript of which is not included in the record. At the preliminary hearing, Hummons said nothing about the object being or appearing to be a butt of a handgun, only a "chrome metal object." Defense counsel asked, "you could have said you saw a gun, but you didn't believe you saw a gun yet, isn't that true?" Hummons replied that was correct. Hummons then stated that what he saw in Horton's waistband when he was outside was shiny, a "very chrome weapon."

         ¶ 13 Defense counsel asked whether the weapon had a wooden handle. Hummons testified that it had wooden grips, but the grips covered only part of the handle and the remainder was metal. He said the handle had chrome around it and a chrome "slide."

         ¶ 14 The parties stipulated that a "firearms receipt" and "work sheet report" Hummons prepared described the gun as a Taurus with a black handle.

         ¶ 15 The State argued that Horton was not "seized at any point" until the handgun was recovered. Horton had no reasonable expectation of privacy in the bedroom; but even if he did, the officer was acting in "hot pursuit" and exigent circumstances justified taking Horton into custody and recovering the handgun without either an arrest or search warrant.

         ¶ 16 Horton argued that Hummons' testimony varied from that of his preliminary hearing testimony in which he said he saw a "metal object." Horton further argued that his entry into the house did not justify the officers' entry. Finally, Horton asserted that no evidence suggested the officers obtained any information from the people on the porch about who lived in the house, nor was Hummons aware that the house was not Horton's.

         ¶ 17 The trial court denied Horton's motion, finding Hummons' testimony to be credible. The trial court found that Hummons had reasonable grounds to believe that a crime may have been or was being committed. Hummons did not know whether it was Hummons' house, but "the officer chase[d] him into the house. It took some time because the keys-the officer's in hot pursuit. Legally he can pursue a person into that house."

         ¶ 18 Motion In Limine Regarding Gun Ownership

         ¶ 19 After the suppression hearing, but before trial, the State orally moved to preclude Horton from introducing evidence regarding the gun's ownership and whether the gun was stolen. Horton sought to introduce a document from the Department of Justice's Bureau of Alcohol, Tobacco, and Firearms Explosives National Tracing Center naming the owner and showing that the weapon was not stolen.

         ¶ 20 The trial court granted the State's motion in limine, finding the document was not self- authenticating because it was not certified, and ruling the document was inadmissible as the defense did not present a foundation witness for the document's admission.

         ¶ 21 Trial Testimony

         ¶ 22 At trial, Hummons testified that he and Meredith were on patrol on the south side of Chicago in an unmarked police car. Meredith drove slowly while Hummons scanned the neighborhood. As they passed a row house at 6901 East End Avenue, Hummons noticed an unidentified woman and man standing on the porch. Horton was standing some two to three feet away from the porch, not quite at the sidewalk, with his back to the street. Hummons made eye contact with Horton and noticed a "bulge" on the right side of his waist that had the "characteristics of a weapon." Horton was wearing a t-shirt. Horton then turned toward the house, and "his shirt raised a little" giving Hummons "a glimpse of a chrome metallic object" that he thought was the butt of a handgun.

         ¶ 23 Hummons told Meredith to stop and back up. As the two officers got out of the car, Horton rushed into the house and locked the door. Hummons followed him and tried the door. He and Meredith then detained the two people on the porch. Hummons stated that when the woman stood up, he noticed a set of keys near where she had been sitting. Hummons and Meredith called for backup. After the backup arrived about five or six minutes later, Hummons used the keys to unlock the front door. Hummons believed Horton had a gun in public. He did not know whether the house belonged to Horton or someone else.

         ¶ 24 Hummons entered the house, then Meredith. No one was on the first floor. Hummons heard noise on the second floor, and went upstairs. There were two bedrooms. Hummons went to the bedroom straight ahead; Meredith went to the other bedroom. Hummons saw Horton crouching by the side of the bed. Hummons could not see Horton's hands. Hummons entered the bedroom with his gun drawn and ordered Horton to raise his hands and come out. At the same time, Meredith detained someone in the other bedroom. After the two were sent downstairs to the backup officers, Hummons told Meredith to check the bed where Horton had been crouching. Meredith recovered chrome, semiautomatic handgun from under the mattress. Meredith checked the magazine and unloaded it. Hummons testified that the gun was the same gun he had seen in Horton's waistband minutes earlier. When the State asked how much of the gun was showing when Hummons observed it in Horton's waistband, Hummons said he saw "[j]ust behind the handle portion and back." He did not see the trigger mechanism or the barrel, but the part he saw was silver metallic as well as a darker grip color.

         ¶ 25 On cross-examination, defense counsel questioned Hummons about his testimony at the preliminary hearing. When Hummons testified that he saw a "chrome metal object" and "could not tell what it was, " defense counsel asked, "[b]ut today you told the ladies and gentlemen of the jury that you could tell what it was?" Hummons replied, "[y]es. It appeared to me to be a weapon, the butt of a handgun." Hummons testified at the preliminary hearing that he did not see Horton "make contact with" the gun found under the mattress. Hummons also stated the handgun was not examined or preserved for fingerprints or DNA.

         ¶ 26 Defense counsel questioned Hummons regarding parts of his testimony that were not included in either the original incident report or the arrest report. Among other things, Officer Hummons did not include in his report that he saw a bulge on Horton's hip, that he saw the butt of a weapon, or that he saw the handle of a weapon. Hummons did not include in his report that Horton went inside and locked the door, that Hummons heard noise upstairs, or that someone was in the other bedroom.

         ¶ 27 On recross, Hummons stated that he never saw a gun in Horton's hand. Hummons explained that as a police officer, he did not have the authority to submit evidence for fingerprints or DNA. Detectives submitted weapons recovered by the police for testing and no detectives were assigned to the case. Hummons ...

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