People v. Horton

          Appeal 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 appellant.

          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 opinion.

          OPINION

          HYMAN, JUSTICE.

         ¶ 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, unlawful.

         ¶ 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 these arguments.

         ¶ 10 Background

         ¶ 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 "slide."

         ¶ 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 warrant.

         ¶ 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 motion.

         ¶ 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 handgun.

         ¶ 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 else.

         ¶ 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 door.

         ¶ 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, registered."

         At this 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 ...