IL: A hunch a man on the street has a gun in Chicago isn’t reason for a stop because of the state right to keep and bear arms

A hunch that a man on the street might have had a gun wasn’t reason for a stop because of the right to keep and bear arms. People v. Horton, 2017 IL App (1st) 142019, 2017 Ill. App. LEXIS 218 (March 31, 2017), mod. on denial of rehearing 2017 IL App (1st) 142019, 2017 Ill. App. LEXIS 361 (June 6, 2017):

[*P1] 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.

[*P2] 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.

[*P3] 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.”

[*P4] 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.