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People v. Spain

Court of Appeals of Illinois, First District, Sixth Division

December 27, 2019

STEVEN SPAIN, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 16 CR 2276 Honorable Timothy Joseph Joyce, Judge Presiding.

          Attorneys James E. Chadd, Patricia Mysza, and Maggie A. Heim, of State for Appellate Defender's Office, of Chicago, for appellant. Appellant

          Attorneys Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. for Spellberg, and Tasha-Marie Kelly, Assistant State's Attorneys, Appellee: of counsel), for the People.

          PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Griffin concurred in the judgment and opinion. Justice Walker dissented, with opinion.



         ¶ 1 Following a stipulated bench trial, defendant Steven Spain was found guilty of aggravated unlawful use of a weapon (AUUW) for possessing a concealed and loaded handgun with no valid Firearm Owner's Identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014)) or concealed carry license (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)). Mr. Spain received the statutory minimum sentence of one year in prison. The trial court had earlier denied Mr. Spain's motion to quash his arrest and suppress evidence, agreeing with the State that the arresting officers had both a reasonable suspicion of illegal activity to detain Mr. Spain for questioning and probable cause to arrest him and seize the firearm. Mr. Spain now challenges that ruling. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 At a suppression hearing held on May 17, 2016, Mr. Spain called Officer Michael O'Connor, an 11-year veteran of the Chicago Police Department and a member of its gang enforcement unit since 2009. Officer O'Connor testified that, on the afternoon of January 27, 2016, he and his partners, Officers Pouzlp and Perez, were on plainclothes patrol in an unmarked police vehicle, with Officer O'Connor seated in the vehicle's front passenger seat. Although not in full uniform, Officer O'Connor was wearing a vest with a police insignia and his service belt, which held his weapon, handcuffs, and radio.

         ¶ 4 The three officers arrived at 718 West 48th Street in Chicago in response to an anonymous call regarding "a man with a gun," described to them as "a male Hispanic with tattoos on his face." There they saw, according to Officer O'Connor, "five male Hispanics and one male white"- Officer O'Connor identified the latter as Mr. Spain-standing in the front yard of an abandoned residential building. Just before Officer O'Connor exited the vehicle, he observed Mr. Spain, from a distance of between 10 and 14 feet, "turn toward the fence in the area and try to stuff a large black object down his pants consisting of a gun handle."

         ¶ 5 Officer O'Connor approached Mr. Spain and told him to put his hands in the air. According to the officer, Mr. Spain "complied for a second," but then "[l]ooking nervously he kept attempting to put his hand back in his pocket." Officer O'Connor, now a foot or two away, again told Mr. Spain to put his hands in the air. He then had Mr. Spain put his hands down on a nearby vehicle and performed a patdown. Feeling what he believed to be the weapon whose handle he had seen, Officer O'Connor asked one of the other officers at the scene to retrieve it from where it had begun to fall into Mr. Spain's pant leg. The recovered weapon was a "black .38 Special handgun with a five-inch barrel [and] six shots loaded." Officer O'Connor then immediately placed Mr. Spain under arrest.

         ¶ 6 Officer O'Connor acknowledged that, when he made the arrest, he did not yet know Mr. Spain's name and had not checked to see whether Mr. Spain had a valid FOID card or concealed carry license. Aside from observing that Mr. Spain appeared to be in possession of the gun in a public place (unlawful without a valid FOID card or concealed carry license (430 ILCS 65/2(a)(1), (c-5) (West 2016))) and that the gun was partially concealed (unlawful without a concealed carry license (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014); 430 ILCS 66/10(c)(1) (West 2014))), Officer O'Connor had not seen Mr. Spain violate any local, state, or federal law.

         ¶ 7 On cross-examination by the State, Officer O'Connor explained that he was familiar with local gang activity. The 700 West block of 48th Street is territory of the Satan Disciples, a street gang that was then "at war" with the Insane Deuces of Canaryville. On the afternoon that this all occurred, in addition to the anonymous tip about a man with a gun, there was an officer safety alert in place, based on a tip that the Insane Deuces were, according to Officer O'Connor, "planning to shoot up the address of 720 West 48th Street because a high-ranking member of the Satan Disciples was known to live in that building." The yard of the abandoned building, where Mr. Spain and the five individuals he was with were seen standing, was immediately adjacent to the address identified in the officer safety alert.

         ¶ 8 Nothing obstructed Officer O'Connor's view when he saw Mr. Spain conceal what he believed was a handgun in his pants. According to the officer, Mr. Spain looked nervous when the police vehicle arrived on the scene and "really nervous" when he was asked to put his hands up. When he conducted the patdown, Officer O'Connor knew the object that he felt near Mr. Spain's waistband was a gun because it felt just like the revolver the officer himself carried.

         ¶ 9 Based on this testimony, defense counsel urged the trial court to find that the officers, who lacked any information regarding whether Mr. Spain possessed a valid concealed carry license, did not have the requisite reasonable suspicion of criminal activity to detain and search him, let alone probable cause to arrest him and seize the gun as evidence. Pointing out that Mr. Spain did not run away, did not throw anything, and complied with the officers' orders, defense counsel insisted that the officers could not have reasonably inferred from Mr. Spain's behavior that he lacked proper documentation for the weapon or intended to remove or fire it.

         ¶ 10 Noting that it found Officer O'Connor to be, "without qualification," a credible witness, the trial court first concluded that, "[i]n connection with [the] gang activity or no," having seen Mr. Spain hide a gun from the officers in the waistband of his pants, Officer O'Connor had "every reason *** to do a Terry stop," including a protective patdown for officer safety. Terry v. Ohio, 392 U.S. 1 (1968). The court nevertheless felt compelled by this court's decision in People v. Holmes, 2015 IL App (1st) 141256-which had not yet been reversed by our supreme court (People v. Holmes, 2017 IL 120407)-to grant Mr. Spain's motion to suppress, on the basis that the officers, having made no effort to determine if Mr. Spain possessed a concealed carry license, lacked probable cause to arrest him and seize the gun. In Holmes, this court held that a motion to quash arrest and suppress evidence was properly granted where probable cause was based on the defendant's mere possession of a firearm, under a portion of the AUUW statute later declared unconstitutional in People v. Aguilar, 2013 IL 112116. Holmes, 2015 IL App (1st) 141256, ¶ 38. Our supreme court, however, held that if probable cause existed at the time of arrest, it would not be retroactively eliminated by the holding in Aguilar. Holmes, 2015 IL App (1st) 141256, ¶¶ 39-40.

         ¶ 11 The State in this case moved the trial court to reconsider, arguing that because Mr. Spain was arrested after Aguilar and the State in his case never claimed that the mere possession of a gun could establish probable cause, the appellate court decision in Holmes was not controlling. The State's position in this case was that, because of Mr. Spain's "nervous demeanor and constant attempt to put his hands in his pants, after Officer O'Connor ordered him numerous times to put his hands up," the officers had probable cause to believe Mr. Spain was not merely carrying a gun but was doing so without the requisite FOID card or concealed carry license-offenses that were not affected by Aguilar. As the assistant state's attorney argued, "[i]t just doesn't make sense *** that he would be trying to hide something that he could legally carry."

         ¶ 12 Defense counsel countered that people are often nervous around police officers, whether or not they have committed a crime, and it is a simple matter for officers to ask a suspect for necessary documentation before making an arrest.

         ¶ 13 The trial court granted the State's motion to reconsider. The trial judge wondered why anyone who had gone through the onerous process of obtaining a concealed carry license should not be expected to voluntarily provide it to officers if stopped and questioned. In the absence of such a voluntary disclosure, the court asked, "couldn't [a] reasonable police officer conclude[, ] not as a matter of proof beyond a reasonable doubt, but as probable cause, *** that the person probably [didn't] have [the required documentation]?" Defense counsel argued that a finding of probable cause based on a suspect's failure to volunteer information would "be putting the burden on everyone to ...

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