Court of Appeals of Illinois, First District, Second Division
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.
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.
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
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
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
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 ...