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First District Vacates UPF Conviction


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#1 skinnyb82

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Posted 28 December 2016 - 04:31 PM

This is a big deal. The First District (IL appellate) vacated a conviction for unlawful possession of a weapon by a felon, following Aguilar and Burns, holding that the seizure was unconstitutional because the statute which the LEO relied on was unconstitutional (AUUW/UUW/UPF) and voided by the ILSC. The court declined to apply the Krull good faith exception to a statute held unconstitutional and declared void ab initio.

 

The court couldn't find reasonable suspicion to justify a Terry stop other than the Man With a Gun tip and, since AUUW/UUW was voided, there was no reasonable suspicioun and (especially) no probable cause to arrest the defendant. Since the Good Faith Exception cannot be applied to a seizure based on an unconstitutional statute that is treated as though it never existed, all evidence must be suppressed, arrest quashed. http://www.illinoisc...ict/1141040.pdf Sent from my VS987 using Tapatalk


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#2 MagSlap

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Posted 28 December 2016 - 04:40 PM

TMA!!!

 

 

 

 

 

 

 

 

 

 

(Too Many Acronyms)  ;) 



#3 wtr100

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Posted 28 December 2016 - 04:42 PM

can somebody translate that to American 


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#4 Molly B.

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Posted 28 December 2016 - 05:16 PM

TMA!!!

 

 

(Too Many Acronyms) 

 

 

Fixed it for you.


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#5 skinnyb82

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Posted 28 December 2016 - 05:35 PM

Since carrying a handgun in public is no longer a criminal offense, and should never have been a criminal offense (broadly speaking), then there is no justification for seizing a person as a seizure absent reasonable suspicion is unconstitutional. And since the aggravated unlawful use of a weapon (AUUW) and unlawful use of a weapon (UUW) were declared void ab initio by the Illinois Supreme Court (ILSC), the Krull good faith exception ("GFE"), the officer's "good faith" belief that a crime has been committed, and at the time there had been a crime committed, cannot be applied. The officer did have the justification to conduct a Terry stop but the same officer, under the exact same circumstances today, would not have the justification to conduct a Terry stop as carriage of a loaded firearm in public is not illegal. That's the gist of it. No crime being committed (the presumption of innocence applies here as well), no reasonable suspicion. Same logic has been applied to stops of open carriers who turn out to be felons, simply because they were carrying. Sent from my VS987 using Tapatalk
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#6 mauserme

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Posted 28 December 2016 - 05:49 PM

Mind if I move this to the Judicial Forum?


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#7 wtr100

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Posted 28 December 2016 - 06:02 PM

So police can't use a man with a gun call to stop and arrest a felon with a gun

 

They need to make up some other reason to stop him and then ask if he has a gun seems the practical way this would work out 


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#8 skinnyb82

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Posted 28 December 2016 - 06:11 PM

So police can't use a man with a gun call to stop and arrest a felon with a gun
 
They need to make up some other reason to stop him and then ask if he has a gun seems the practical way this would work out 

No, they can't use an anonymous man with a gun tip to develop reasonable suspicion. Or should I say the sole reason to develop enough RS to seize a person. Not when it's simply "he (or she) has a gun" (rather than "he has a gun and is waving it around....").

And yeah, I'm sure that many will make up something else but whether that holds up in court is another story. I saw an appellate case out of Texas where the panel mocked police for basically using everything as reasonable suspicion of drug trafficking before suppressing evidence from a traffic stop. Went a little like this..."Driver looks at officer, driver looks away, driver looks then quickly looks back at the road. Driver is alone, driver isn't alone. Driver is a female. Car is a rental."

Bottom line is they can't seize a person who is not breaking the law. The same principle applies to traffic stops. LEOs cannot pull people over for a speed infraction when the driver isn't violating the speed limit. If that's the basis for the stop, that the driver was doing 64 in a 65 zone (absent any extenuating circumstances like road hazards and what have you) then it doesn't matter what happens after that.

@mauser Feel free to move this. I didn't know if it warranted a posting in judicial so I plopped it "back" here.

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Edited by skinnyb82, 28 December 2016 - 06:20 PM.

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#9 RoadyRunner

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Posted 28 December 2016 - 09:45 PM

Not surprising. Pretty much all UUW and AUUW convictions before the CCL was passed should be vacated, since the AUUW and UUW laws were held to be unconstitutional prior to the CCL passing.

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#10 bmyers

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Posted 29 December 2016 - 05:39 AM

Very interesting ruling.

#11 Redlin

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Posted 29 December 2016 - 05:45 AM

Admittedly I do not understand all this stuff as much as a lot of you do,but does this mean or could it potentially mean that if anyone,specifically a CCL holder, were to inadvertently expose his/her firearm and someone saw it and called the police, they would have no grounds to investigate/stop you? Especially if the firearm were to be covered up when the officers arrived?

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#12 BobPistol

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Posted 29 December 2016 - 06:43 AM

Admittedly I do not understand all this stuff as much as a lot of you do,but does this mean or could it potentially mean that if anyone,specifically a CCL holder, were to inadvertently expose his/her firearm and someone saw it and called the police, they would have no grounds to investigate/stop you? Especially if the firearm were to be covered up when the officers arrived?

 

Precisely. 

 

But if we have a "man with a gun" call - it is now only going to be for the maniacs waving it around (definitely not your typical FCCL holder).


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#13 skinnyb82

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Posted 29 December 2016 - 07:25 AM

United States v. Black, a man carrying openly was accosted and subsequently arrested for possession of a weapon by a felon. What was the LEO's reasonable suspicion? Mr. Black was armed. The problem? Open carry is legal in North Carolina. He wasn't breaking the law so the officer(s) had no reasonable suspicion that he was committing a crime. The arrest was quashed by the Fourth Circuit. Here's the problem. While concealed carry may be a lawful activity here, it's still concealed and....let's just say that having the grip of your pistol poking out may give a LEO reasonable suspicion simply due to the definition of "concealed" as in it isn't properly concealed if the grip is poking out for 5 seconds. Sent from my VS987 using Tapatalk
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#14 tkroenlein

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Posted 29 December 2016 - 07:45 AM

Every time I read these vacated UUW/AUUW convictions I have to wonder how we are bound by this law at all.

ETA: The legislature is going to have to deal with this sooner or later, lest we lose all ability to incarcerate felons for weapons violations.


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Edited by tkroenlein, 29 December 2016 - 07:47 AM.


#15 NakPPI

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Posted 29 December 2016 - 07:48 AM

The takeaway is that the mere possession of a gun is not a crime. Illinois is slowly being dragged into alignment with free States, law enforcement just hasn't caught up yet. I suggest people watch Live PD, it follows cops in Tulsa, Florida, and Utah. They find guns all the time. Especially in Utah, but you rarely see an arrest because of the gun. It's usually a DUI or drugs that results in the arrest. Sent from my XT1650 using Tapatalk

Edited by NakPPI, 29 December 2016 - 07:48 AM.

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#16 skinnyb82

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Posted 29 December 2016 - 07:51 AM

The post title is misleading. The court did not vacate the conviction, only reversed the trial court's denial of motions to suppress and quash the arrest. The defendant is walking away from this with a nolle prosequi on his sheet next to the UPF charge for disposition. He was initially charged with a ton of counts of AUUW and UUW. The circumstances surrounding this case make it especially important as the firearm was concealed, technically. Sent from my VS987 using Tapatalk
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#17 tkroenlein

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Posted 29 December 2016 - 07:52 AM

The takeaway is that the mere possession of a gun is not a crime. Illinois is slowly being dragged into alignment with free States, law enforcement just hasn't caught up yet.

I suggest people watch Live PD, it follows cops in Tulsa, Florida, and Utah. They find guns all the time. Especially in Utah, but you rarely see an arrest because of the gun. It's usually a DUI or drugs that results in the arrest.

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I love LIVE PD. It's me and my 9 yr old daughters Friday night jam. On A&E BTW. She likes criminals getting thrown in the dirt, but I like the layman's explanations of why they're getting arrested.

#18 tkroenlein

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Posted 29 December 2016 - 07:56 AM

The post title is misleading. The court did not vacate the conviction, only reversed the trial court's denial of motions to suppress and quash the arrest. The defendant is walking away from this with a nolle prosequi on his sheet next to the UPF charge for disposition. He was initially charged with a ton of counts of AUUW and UUW. The circumstances surrounding this case make it especially important as the firearm was concealed, technically.

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I see. Does practical effect appear to be the same though, since many felons are only arrested/convicted due to mere possession?


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#19 NakPPI

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Posted 29 December 2016 - 08:02 AM

The post title is misleading. The court did not vacate the conviction, only reversed the trial court's denial of motions to suppress and quash the arrest. The defendant is walking away from this with a nolle prosequi on his sheet next to the UPF charge for disposition. He was initially charged with a ton of counts of AUUW and UUW. The circumstances surrounding this case make it especially important as the firearm was concealed, technically.
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I see. Does practical effect appear to be the same though, since many felons are only arrested/convicted due to mere possession?
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Yes and no. Had the officer known that the defendant was a felon, he would have had suspicion of a crime-- felon with a gun. Or saw him dealing drugs, etc. Basically the gun possession by itself isn't enough.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#20 skinnyb82

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Posted 29 December 2016 - 08:20 AM

Yes, a LEO may rely on firsthand knowledge to develop reasonable suspicion to conduct a Terry stop but may not rely on "some anonymous tipster said he has a gun" to develop reasonable suspicion. The latter would be the definition of unreasonable suspicion. I can see the state pivoting with regard to these AUUW/UUW/UPF post-conviction appeals, relying on Heien v. North Carolina which permits LEOs to make a "reasonable mistake of law," although I suspect that seizing a person simply for possessing a firearm (relying on the mistaken belief that mere possession is a crime) would not be considered a "reasonable mistake of law" by any reasonable court of law as the LEO would have to be living in a bubble to not know that carriage of firearms in public is now legal in Illinois. It is worth noting that, had defendant been charged with anything on top of UPF, the Krull good faith exception likely would have applied and the conviction(s) on the other, hypothetical charges, would stand. NakPPI is correct that seeing a person (with a gun, and that is suspected of having a weapon) who is dealing drugs would develop reasonable suspicion independent of the whole "man with a gun" issue, so any conviction involving the firearm would stand. DUIs (conviction stands), even walking out of the wrong house at the wrong time such as Mr. Strieff out in Utah who was subsequently accosted by a LEO who admitted in open court that he had no reasonable suspicion to conduct a Terry stop on a man seen leaving a suspected meth den, discovering he has an outstanding warrant for an unpaid parking ticket, and discovering meth on his person during the search incident to arrest (on the warrant). He ended up in in state prison out in Utah simply for being in the wrong place at the worst time. SCOTUS applied the doctrine of attenuation, holding the arrest was lawful and subsequent search incident to arrest was also lawful. Lesson, don't commit crimes. Don't have warrants out, pay your citations. Sent from my VS987 using Tapatalk
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#21 spanishjames

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Posted 29 December 2016 - 08:55 AM

Lesson, don't commit crimes. Don't have warrants out, pay your citations.


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#22 OldMarineVet

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Posted 29 December 2016 - 09:41 AM

United States v. Black, a man carrying openly was accosted and subsequently arrested for possession of a weapon by a felon. What was the LEO's reasonable suspicion? Mr. Black was armed. The problem? Open carry is legal in North Carolina. He wasn't breaking the law so the officer(s) had no reasonable suspicion that he was committing a crime. The arrest was quashed by the Fourth Circuit. Here's the problem. While concealed carry may be a lawful activity here, it's still concealed and....let's just say that having the grip of your pistol poking out may give a LEO reasonable suspicion simply due to the definition of "concealed" as in it isn't properly concealed if the grip is poking out for 5 seconds. Sent from my VS987 using Tapatalk

It's my understanding IL's law is "partially concealed" not completely concealed. Does that change anything stated above?  Thanks



#23 skinnyb82

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Posted 30 December 2016 - 01:54 PM


United States v. Black, a man carrying openly was accosted and subsequently arrested for possession of a weapon by a felon. What was the LEO's reasonable suspicion? Mr. Black was armed. The problem? Open carry is legal in North Carolina. He wasn't breaking the law so the officer(s) had no reasonable suspicion that he was committing a crime. The arrest was quashed by the Fourth Circuit. Here's the problem. While concealed carry may be a lawful activity here, it's still concealed and....let's just say that having the grip of your pistol poking out may give a LEO reasonable suspicion simply due to the definition of "concealed" as in it isn't properly concealed if the grip is poking out for 5 seconds. Sent from my VS987 using Tapatalk


It's my understanding IL's law is "partially concealed" not completely concealed. Does that change anything stated above?  Thanks

Yes it makes it more subjective. How you define "partially" is different from how I (or anyone else) defines "partially" and that is the problem here. A LEO could say "I didn't believe it was partially concealed" and that's good enough for a judge. Then again, I don't know of a single judge, lawyer, or potential juror who wishes to parse the definition of "partially" which is defined as "not entirely" or "slightly," or "moderately." Slightly, moderately, not entirely, how can someone objectively define "partially." It's impossible. It reminds me of Bill Clinton trying to split a fine, fine hair with his famous "It depends on what your definition of the word 'is,' is" response during a depo.

I mean, if people really wanna play Clintonian word games, "partially concealed" is a paradox. It isn't concealed if it's "partially" visible, therefore it cannot be "partially concealed." Concealed (defined) means "kept secret" or "hidden" so we have a concealed carry statute that says "Keep your pistol slightly (or moderately, not entirely) hidden."

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