Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 11 CR 14395 The
Honorable Lawrence E. Flood, Judge, presiding.
Attorneys for Appellant: Douglas H. Johnson, of Kathleen T.
Zellner & Associates, P.C., of Downers Grove, for
Attorneys for Appellee: Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg, Assistant
State’s Attorney, of counsel), for the People.
JUSTICE HYMAN delivered the judgment of the court, with
opinion. Justice Walker [*] concurred in the judgment and
1 Pivotal changes in Illinois law dealing with the carrying
of firearms, partly mandated by United States Supreme Court
rulings, have exacerbated legal and practical issues for
police. Foremost, police still must enforce the mandate to
reduce gun violence and remove illegal firearms from the
streets. Presumably acting on that laudable desire, an
officer had a hunch, based on seeing "a metallic
object" in Markell Horton's waistband, and pursued
him. Eventually, police found a handgun hidden under a
mattress in the bedroom where they found Horton and charged
him with the handgun's possession.
2 In our initial decision, issued in the aftermath of
People v. Aguilar, 2013 IL 112116, we reversed the
trial court's denial of Horton's motion to quash his
arrest and suppress a gun found during the search. People
v. Horton, 2017 IL App. (1st) 142019. In
Aguilar, the court declared facially
unconstitutional a portion of the aggravated unlawful use of
a weapon statute under which Horton had been convicted. Then,
our supreme court issued People v. Holmes, 2017 IL
120407, finding that the void ab initio doctrine
applied in Aguilar did not retroactively invalidate
probable cause to arrest. We were ordered to vacate our
decision and reconsider. To this end, we requested the
parties submit supplemental briefs on the impact of
Holmes. Under Holmes, the void ab
initio doctrine no longer factors into our analysis.
Nonetheless, our decision today reaches the same result.
3 Horton argues the trial court erroneously denied his motion
to quash arrest and suppress evidence. He contends that
officers lacked probable cause to believe he was committing a
crime and thus had no lawful basis to arrest him.
Specifically, Horton claims that the officers'
observation of a metallic object and Horton's subsequent
flight into a house did not amount to probable cause of
criminal activity. Alternatively, Horton argues that the
officers lacked reasonable suspicion to chase him into the
house and perform a Terry stop.
4 The State counters that the record supports the belief of
police officer Roderick Hummons that Horton had a gun and,
thus, a finding of probable cause to arrest. The State also
highlights Horton's flight as supporting probable cause.
Once in the house, the State contends, Horton cannot
challenge the officers' pursuit because he had no
expectation of privacy. Alternatively, the State suggests
that the doctrine of "hot pursuit" protects the
officers' actions, assuming Horton could challenge their
entry into the house.
5 We agree with Horton and find that the trial court erred in
denying his motion to suppress. The record unambiguously
establishes that Horton was under arrest after officers
chased him into the house and before they discovered the gun.
Because Horton was under arrest, the officers must have had
probable cause, more than reasonable suspicion, to believe he
was committing a crime. At the outset, we find that the
record does not support a conclusion that Hummons had cause
to believe that Horton possessed a gun at all. The trial
court found that Hummons's observations led him to
believe that Horton "may or may not" have had a
gun. Deferring to that factual finding, as we must, we
conclude that Hummons had no more than a hunch. We also find
that, even if Hummons reasonably believed Horton had a gun,
he was not aware of any facts that would have led him to
believe that Horton's possession was criminal.
6 Because we find no cause to believe that Horton was
committing a crime based on the observation of a metallic
object that "may or may not" have been a gun, we
reject Hummons's reliance on Horton's flight into the
house. Illinois courts repeatedly hold that flight, without
more, cannot result in a finding of reasonable suspicion, let
alone probable cause.
7 We also are mindful of the reluctance of black men
interacting with police, as courts around the country and a
Department of Justice report on policing in Chicago have
recognized. This record does not support, and we do not find,
any racial element to the interaction; even so, we cannot
ignore the well-documented, reasonable, and noncriminal
impulse to avoid interactions with police. Finally, the
record contains no facts that would justify a finding of
probable cause to arrest Horton once officers followed him
into the house. Taken together, we conclude that Horton's
arrest was not justified by probable cause and, accordingly,
8 We also find that suppression is the appropriate remedy.
The State has contested Horton's ability to seek
suppression of the gun because officers found it in a house
where he has no expectation of privacy. We disagree. The text
of the fourth amendment protects an individual interest in
being free from unreasonable seizures. That interest does not
disappear merely because a person does not have a privacy
interest in their location at a given moment. Suppression of
evidence always exists as a remedy for a fourth amendment
violation so long as the discovery of that evidence is
sufficiently linked to the unlawful police conduct. Here,
officers discovered the gun immediately after and as a direct
result of Horton's arrest. Under long-settled fourth
amendment principles, the gun's discovery is the fruit of
Horton's unlawful arrest and must be suppressed. Because
the State could not succeed on remand without this evidence,
we reverse Horton's conviction outright.
9 Horton raises three more arguments. He contends the State
failed to prove him guilty beyond a reasonable doubt, the
trial court improperly excluded evidence of the registration
and ownership of the firearm seized by the police, and his
counsel was ineffective for failing to introduce evidence
that another person owned the gun officers discovered.
Because we reverse Horton's conviction on the ground that
the officers unlawfully obtained the gun, we need not address
11 The State charged Horton with seven gun-related counts,
but elected to proceed only on one charge, that 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 (West 2010).
12 Motion to Quash Arrest and Suppress Evidence
13 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 so the
evidence connecting him with the gun 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); Wong Sun v. United States, 371
U.S. 471 (1963).
14 The only witness at the hearing on the motion to quash,
Chicago police officer 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.
15 Horton looked in Hummons's 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
let themselves inside.
16 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.
17 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, "[t]hat's
correct." Hummons then stated that what he saw in
Horton's waistband when he was outside was shiny, a
"very chrome weapon."
18 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
19 The parties stipulated that a "firearms receipt"
and "work sheet report" Hummons prepared described
the gun as a Taurus with a black handle, not a chrome handle.
20 The State argued that Horton was not "seized at any
point" until the gun 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
21 Horton pointed out that Hummons's testimony varied
from that of his preliminary hearing testimony in which he
said he saw a "metal object." Horton maintained
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 Horton did not live there.
22 The trial court denied Horton's motion, finding
Hummons's testimony as 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 Horton's 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."
23 Motion In Limine Regarding Gun Ownership
24 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 as a business record a
document from the Department of Justice's Bureau of
Alcohol, Tobacco, Firearms and Explosives National Tracing
Center naming the owner and showing that the weapon was not
stolen. The State moved in limine to exclude the
document. The trial court granted the motion, reasoning that
the document was not self-authenticating and needed either a
certification or the testimony of a foundation witness. The
State also made an oral motion to bar reference to statements
Horton made regarding the gun's ownership. Horton sought
to elicit evidence that he and Hummons had a conversation
about the gun. The trial court granted the State's
25 Trial Testimony
26 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 with his back to
the street, some two to three feet away from the porch and
not quite at the sidewalk. 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
27 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. The backup arrived about five or six
minutes later. Then, 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
28 Hummons entered the house first, followed by Meredith.
They saw no one 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 a 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 a 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 saw 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 did see was
silver metallic as well as a darker grip color.
29 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
acknowledged that the handgun was not examined or preserved
for fingerprints or DNA.
30 Defense counsel questioned Hummons regarding parts of his
testimony left out of the original incident report and the
arrest report. Included in Hummons's testimony but not
the reports was that (i) Hummons saw a bulge on Horton's
hip, (ii) Hummons saw the butt of a weapon, (iii) Hummons saw
the handle of a weapon, (iv) Hummons heard noise upstairs,
and (v) someone was in the other bedroom. Also missing from
the reports was that (vi) Horton went inside and locked the
31 On recross, Hummons admitted that he never saw a gun in
Horton's hand. Hummons said 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 a detective was not assigned
to the case. Although he could have done so, Hummons failed
to call for an evidence technician to recover the weapon.
32 Meredith testified he was driving when Hummons told him to
stop and back up. He reversed, and Hummons jumped out of the
car and began to run. Meredith ordered the two individuals on
the porch to his car, and they complied. He called for
assistance, which arrived in about five to six minutes. Then,
he and Hummons entered the house using the keys. They went
upstairs and saw two bedrooms. Meredith went into the bedroom
to the left, where he found a man lying in the bed, while
Hummons went into the other bedroom. Meredith brought the man
out into the hallway where Hummons had Horton detained, and
the two officers directed the men downstairs. Hummons told
Meredith to search the area of the bed where Horton was
crouching. Meredith saw a "bulge" in the mattress
and found a handgun underneath. The gun was a semiautomatic
handgun with a chrome finish and a black plastic handle.
33 Meredith said that when he was driving, he had an
unobstructed view of three people in front of the house, and
first saw Horton from a block to a block and a half away.
When Meredith pulled the car up, Horton stood about six feet
away. Horton ran into the house and Hummons ran after him.
When Meredith and Hummons entered the house, they had their
guns drawn and announced "Chicago police" several
times. Meredith never saw a bulge in Horton's waistband,
never saw Horton in the bedroom, and never saw Horton place
the gun under the mattress. Also, Hummons never told him he
had seen a weapon.
34 The prosecutor asked, "What does it mean to inventory
a weapon?" Meredith answered:
"When you inventory the weapon you get back to the
station and what you want to do is get all the
characteristics off the weapon, the type of weapon it is,
something similar to what I explained when I was giving my
testimony. You let them know how many rounds. They want to
know if you do have an offender in custody, which we did. We
gave the basic information from the defendant's name, his
information, and what he had. And then from there you
let-from there, once you give them all the characteristics of
the gun, the serial number, they take a few minutes because
they have their own system, they look up to see what is going
on with the gun, whether it is registered or whatever the
case may be. Once you get that information from them you
indicate that in your paperwork to see if the gun is stolen,
point defense counsel objected, and after a sidebar the trial
court ruled the door to admitting the evidence of the gun
registration was not opened because Meredith had not
indicated whether or not the gun was stolen. The trial court
then instructed the jury: "Ladies and gentlemen, I am
striking the last portion of the officer's answer. You
are going to disregard that portion of his answer."
35 On redirect, Meredith stated he saw Horton's back as
he rushed inside but ...