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People v. James Thomas


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#1 mauserme

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Posted 29 May 2020 - 05:43 AM

An interesting application of Aguilar:
 
https://www.chicagol...-cause-20200528
 

 

Fourth Amendment — probable cause


Posted May 28, 2020 9:58 AM

Where the police see a firearm in defendant’s unoccupied vehicle, that alone is not sufficient to grant probable cause that a crime has been committed and allow the officers to seize the weapon and arrest defendant absent evidence that defendant is not permitted to possess a firearm.

The 1st District Appellate Court reversed the decision of Cook County Circuit Judge Joan Margaret O’Brien.

James Thomas was approached by two police officers after parking his car at around 6:30 p.m. on Feb. 17, 2015. Thomas alleged that he had just come from picking up his brother, Steve Harris, and driving home and denied committing any traffic offenses. The two Chicago police officers, O’Brien and Bansley stated that they saw Thomas turn without signaling, and “pursued” but that Thomas parked and got out of his vehicle before they caught up with him. They parked behind Thomas, boxing his car in, and approached. O’Brien spoke to Thomas while Bansley looked in the car and saw five inches of an object he identified as the extended magazine of a handgun.

O’Brien then handcuffed Thomas and Harris. While their backs were turned, Bansley opened the vehicle and recovered the firearm. Bansley observed O’Brien release Harris and state afterwards, that Thomas had admitted the gun was his, something Thomas later denied. Thomas was arrested and charged with three counts of aggravated unlawful use of a weapon. Before trial he moved to quash the arrest and suppress evidence, arguing that he was not in the car at the time the gun was seen in it, and that the officers never asked if he possessed a firearm owner identification (FOID) card. But the trial court denied the motion, finding that the weapon being in plain view determined that it could be seized regardless of whether the officers were in danger from it. Thomas was found guilty and sentenced to one year in prison. He appealed.

On appeal, Thomas argued that the police lacked probable cause to arrest him and weren’t entitled to seize the firearm for safety reasons because the car was unoccupied by the time police approached, with Thomas and Harris outside. The appellate court agreed, finding Thomas was walking away from his car to his home, he did not run and the gun was neither on his person nor in his immediate control.

Thomas also argued that the police erred in taking the gun as evidence of illegal activity and grounds for probable cause. The appellate court was sympathetic, noting that Thomas’s arrest, post-Aguilar, required the police to have probable cause to believe not only that he had a gun, but that it was illegal for him to do so. Because Bansley admitted that Thomas was never asked about a FOID card, he lacked probable cause when he entered the car and seized the gun. Therefore, absent the evidence of the gun and arrest there was insufficient evidence to support a finding of guilty. The appellate court concluded that reversal, rather than remand, was proper, and therefore reversed the trial court’s decision.

 
The People of the State of Illinois v. James Thomas
2019 IL App (1st) 162791
Writing for the court: Justice Sheldon A. Harris
Concurring: Justices Mary L. Mikva and Joy V. Cunningham
Released: April 20, 2020

 



#2 mikew

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Posted 29 May 2020 - 05:59 AM

Feb, 2015

The speedy wheels of appeal.



#3 Euler

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Posted 29 May 2020 - 02:23 PM

There was a case, whose name I can't recall atm, very similar in Chicago. A guy with a gun was in the passenger side of a car that got stopped for, I think, a traffic violation. While the car was still in motion, the cops saw the passenger put the gun in the glove compartment. At the stop, the cops got everyone out of the car and opened the glove compartment, seizing the gun. The UUW was thrown out because the cops didn't bother to ascertain whether the passenger had a FOID or a CCL (he had neither, but the point is that they didn't even try), therefore they had no probable cause for the vehicle search.

In the topic case, the firearm was visible inside the car from the outside, so it's at least a CCL violation, although it would be a little bizarre to charge someone with a CCL violation when he doesn't even have a CCL.
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#4 borgranta

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Posted 29 May 2020 - 02:51 PM

There was a case, whose name I can't recall atm, very similar in Chicago. A guy with a gun was in the passenger side of a car that got stopped for, I think, a traffic violation. While the car was still in motion, the cops saw the passenger put the gun in the glove compartment. At the stop, the cops got everyone out of the car and opened the glove compartment, seizing the gun. The UUW was thrown out because the cops didn't bother to ascertain whether the passenger had a FOID or a CCL (he had neither, but the point is that they didn't even try), therefore they had no probable cause for the vehicle search.

In the topic case, the firearm was visible inside the car from the outside, so it's at least a CCL violation, although it would be a little bizarre to charge someone with a CCL violation when he doesn't even have a CCL.

Sound like all a cop needs to do is order a CCL licensee to leave the car and then charge the CCL licensee for leaving the car with the gun in clear view.  There would obviously be the defense of entrapment since following the order of the officer caused the violation of law.


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#5 Euler

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Posted 29 May 2020 - 03:08 PM

If you have a CCL, the gun in the car is supposed to be out of view, whether you're in the car or not. If it's in view and you have a CCL, it's a CCL violation. If it's in view and you don't have a CCL, it's a UUW. (Even if it's out of view and you don't, it's still a UUW, but that's a different topic.)

It makes me wonder if they had charged this guy with a CCL violation, then later amended the charge to UUW when they found out he had no CCL, would that have been legitimate?

The moral of the story is still that the cops should have checked for a CCL first. They screwed up the arrest by not.

Edited by Euler, 29 May 2020 - 03:09 PM.

The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#6 cope

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Posted 29 May 2020 - 05:39 PM

"and saw five inches of an object he identified as the extended magazine"

 

Is it illegal to display a magazine without a license?



#7 Bitter Clinger

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Posted 30 May 2020 - 05:43 AM

If you have a CCL, the gun in the car is supposed to be out of view, whether you're in the car or not. If it's in view and you have a CCL, it's a CCL violation. If it's in view and you don't have a CCL, it's a UUW. (Even if it's out of view and you don't, it's still a UUW, but that's a different topic.)

It makes me wonder if they had charged this guy with a CCL violation, then later amended the charge to UUW when they found out he had no CCL, would that have been legitimate?

The moral of the story is still that the cops should have checked for a CCL first. They screwed up the arrest by not.

 

What about the parking lot safe haven rule?  When I need to go into a building where no guns are allowed, I usually lock the gun in the glove compartment of the car.  This requires me to pull the gun out of the holster and put it in the glove box, making it visible the whole time.  Am I committing a CCL violation?



#8 lockman

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Posted 30 May 2020 - 08:06 AM

If you have a CCL, the gun in the car is supposed to be out of view, whether you're in the car or not. If it's in view and you have a CCL, it's a CCL violation. If it's in view and you don't have a CCL, it's a UUW. (Even if it's out of view and you don't, it's still a UUW, but that's a different topic.)It makes me wonder if they had charged this guy with a CCL violation, then later amended the charge to UUW when they found out he had no CCL, would that have been legitimate?The moral of the story is still that the cops should have checked for a CCL first. They screwed up the arrest by not.


Mostly concealed, in this case non of the gun was visible, only the magazine. Magazines are not even required to be concealed.


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#9 Euler

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Posted 30 May 2020 - 12:42 PM

What about the parking lot safe haven rule?  When I need to go into a building where no guns are allowed, I usually lock the gun in the glove compartment of the car.  This requires me to pull the gun out of the holster and put it in the glove box, making it visible the whole time.  Am I committing a CCL violation?


Isn't the answer to your question contained in the question itself?
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#10 Bitter Clinger

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Posted 31 May 2020 - 04:50 AM

 

What about the parking lot safe haven rule?  When I need to go into a building where no guns are allowed, I usually lock the gun in the glove compartment of the car.  This requires me to pull the gun out of the holster and put it in the glove box, making it visible the whole time.  Am I committing a CCL violation?


Isn't the answer to your question contained in the question itself?

 

 

No, it's not.  Since the parking lot safe haven rule exists, one would assume a gun would be visible as you moved it from your holster to somewhere else.

The question -> is it a violation or not?

 

I would think not, but you never know with this state.



#11 Euler

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Posted 31 May 2020 - 03:59 PM

430 ILCS 66/5
...
"Concealed firearm" means a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.
...

430 ILCS 66/65
...
(b) ... any licensee ... may store a firearm or ammunition ... out of plain view within the vehicle in the parking area. .... For purposes of this subsection, "case" includes a glove compartment or console that completely encloses the concealed firearm or ammunition, the trunk of the vehicle, or a firearm carrying box, shipping box, or other container.
...


If someone sees you and thinks you're brandishing, you could be in trouble. Otherwise the state cannot permit you to transfer the firearm and ammo from one place of concealment to another, then charge you with a crime for that transfer. Whether or not there's Illinois case law on it, I'm certain a loaded magazine would count as "ammunition."

Edited by Euler, 31 May 2020 - 04:00 PM.

The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#12 Smallbore

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Posted 01 June 2020 - 07:49 AM

Though I have no legal training I read the above quoted statute as allowing a loaded pistol to be in plain view on the driver's seat next to ccl holder.

#13 Bitter Clinger

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Posted 01 June 2020 - 09:39 AM

That would be "in plain view".

The law says it must be "out of plain view".






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