                                    2016 IL App (1st) 141040


                                                                           FIFTH DIVISION
                                                                           December 23, 2016

                                 No. 1-14-1040
______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                           FIRST JUDICIAL DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Cook County.
                                                )
v. 	                                            )     No. 11 CR 18062
                                                )
LAMONT THOMAS,                                  )     Honorable
                                                )     Thomas M. Davy,
      Defendant-Appellant.                      )     Judge Presiding.
______________________________________________________________________________

       JUSTICE LAMPKIN delivered the judgment of the court, with opinion. 

       Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion. 



                                           OPINION

¶1     Following a bench trial, defendant Lamont Thomas was convicted of unlawful use or

possession of a weapon by a felon and sentenced to five years’ imprisonment. On appeal,

defendant contends that the trial court erred in denying his motion to quash arrest and suppress

evidence because police lacked reasonable suspicion to justify a stop pursuant to Terry v. Ohio,

392 U.S. 1 (1968). We reverse.

¶2	                                      BACKGROUND

¶3     Defendant was arrested on January 8, 2012, and charged by indictment with four counts

of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use or possession

of a weapon (UUW) based on his September 15, 2009, possession of a handgun in public. The
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State charged defendant with AUUW for possessing a gun: outside of his home and the gun was

uncased, loaded and immediately accessible at the time of the offense (count 1) (720 ILCS 5/24­

1.6(a)(1), (a)(3)(A) (West 2008)); outside of his home without having been issued a valid

Firearm Owner’s Identification Card (FOID card) (count 2) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)

(West 2008)); within the city of Chicago (count 3) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West

2008)) and; within the city of Chicago without having been issued a valid FOID card (count 4)

(720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2008)). Defendant was also charged with two counts

of UUW for possessing a gun (count 5) and ammunition (count 6) after having been convicted of

a felony (720 ILCS 5/24-1.1(a) (West 2008)).

¶4     Prior to trial, defendant filed a motion to quash arrest and suppress evidence alleging that

his arrest was made in violation of the fourth and fourteenth amendments of the United States

Constitution. See U.S. Const., amends. IV, XIV. At the hearing on defendant’s motion, the State

presented the testimony of the two police officers involved in defendant’s Terry stop. The

officers’ accounts of the events leading to the stop, including their testimony regarding the

contents of a tip they received from an unidentified citizen that prompted them to stop defendant,

were substantially consistent and found to be credible by the trial court. Defendant does not

contest the substance of the officers’ testimony on appeal. The following account of the Terry

stop, and the events leading to it, was presented at the hearing on defendant’s motion to quash

arrest and suppress evidence.

¶5     Chicago police officer Patrick Kinney testified that about 10 p.m. on September 15, 2009,

he and his partner Officer Richard Antonsen, were on patrol in plain clothes and an unmarked

police vehicle within the Fourth District when they were flagged down by a man with whom

neither officer was familiar. Officer Kinney testified that he did not ascertain the man’s name

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and that the man indicated to the officers that he wished to remain anonymous. Officer Kinney

described the man as a “male black approximately in his 30s.” Officer Kinney testified the man

did not smell of alcohol and his demeanor was “normal.” During their approximately 30-second

conversation, the man told Officer Kinney that “a male black wearing a red shirt had just placed

a black handgun into a backpack and was *** walking eastbound on 80th Place from Exchange

[Avenue].” Officer Kinney did not ask the man how he knew about the person with the gun.

¶6     After speaking with the unidentified man, Officer Kinney, “within seconds,” relocated to

80th Place which was approximately a block and a half away. At the 2900 block of East 80th

Place, Officer Kinney observed four or five people in the area, including defendant, who was

wearing a red shirt, holding a backpack to the right side of his body and walking eastbound on

the sidewalk. Officers Kinney and Antonsen approached defendant for a field interview. As they

did so, Officer Kinney announced his office and defendant walked up the stairs leading to the

front porch of a residence. Officer Kinney followed defendant to the porch and attempted to do a

protective pat down of defendant’s person. Officer Kinney testified that he wanted to do a

protective pat down of defendant because of the information that was relayed to him that

defendant was in possession of a weapon.

¶7     As Officer Kinney reached for defendant’s waistband, defendant dropped the backpack

he was holding onto the porch. Officer Kinney testified that he had not started to pat down

defendant, before defendant dropped the backpack. The officer acknowledged that he prepared

an arrest report, detailing the events that happened on the porch, and admitted that in the report

he stated that he conducted a pat down of defendant’s person and that defendant dropped the

backpack while he was conducting the pat down. Officer Kinney testified that during the pat

down he intended to search defendant’s person and not the backpack.

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¶8     Officer Kinney stated that when the backpack hit the porch it made a “thud” sound that

was consistent with a steel object, such as a gun, inside the backpack. Officer Kinney also stated

that the thud was a sound he has heard before based on “people dropping guns” in his presence.

As the officer picked up the backpack, defendant grabbed it and they started to struggle over it.

Officer Kinney gained possession of the backpack and threw it to his partner, who was standing

below the porch near the sidewalk. As Officer Kinney attempted to detain defendant, he heard

Officer Antonsen say “gun.”

¶9     Officer Antonsen testified to substantially the same sequence of events as Officer

Kinney. Officer Antonsen added that he observed defendant walking eastbound on 80th Place

within minutes, “if not sooner,” of speaking with the unidentified man. After Officer Kinney

announced his office to defendant, the officer told defendant he was going to search him. Officer

Kinney did not say anything to defendant between announcing his office and informing

defendant that he was going to search him. Officer Antonsen stated that the porch defendant was

standing on was made of concrete and that it was a “landing” in front of a door with enough

space for three people to stand. Defendant dropped the backpack as Officer Kinney approached

him. When defendant did so, Officer Antonsen heard a “metal sound” like “something hard

hitting the ground.” Officer Antonsen stated that he was familiar with guns, had recovered

hundreds of guns, was on “the specialized unit for guns,” and that the sound he heard when

defendant dropped the backpack was consistent with a gun being inside the backpack. After

Officer Kinney gained possession of the backpack, he threw it to Officer Antonsen, who placed

the backpack on the ground, opened it and saw a handgun inside. Officer Antonsen said “gun”

upon seeing the weapon in the backpack.



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¶ 10   Following argument, the trial court denied defendant’s motion to quash arrest and

suppress evidence. In doing so, the court stated that “this is a close case” and found that, based

on the short period of time within which the officers observed defendant and corroborated the

unidentified man’s tip, which predicted defendant’s behavior, a pat down of defendant and a

search of his backpack would have been justified even if defendant did not drop the backpack. In

reaching this conclusion, the court stated that it believed the sequence of events as documented

in Officer Kinney’s arrest report that the officer was beginning to pat down defendant when

defendant dropped the backpack.

¶ 11   Defendant filed a motion to reconsider the denial of his motion to quash arrest and

suppress evidence. During the hearing on his motion, defense counsel argued that there was a

search performed in this case and that the officers did not have probable cause to perform the

search before or after defendant dropped the backpack. Counsel also pointed out to the court that

the porch in question was made of wood, not concrete as testified to by Officer Antonsen, and

that this contradicts the officer’s testimony that he heard a “metal sound” when defendant

dropped the backpack. In denying defendant’s motion to reconsider, the court stated that police

were justified in making a Terry stop based on the unidentified man’s tip, which was predictive

and the contents of which would not have been available to anyone. With regard to the porch

being made of wood, the court stated that it was not of such significance that it would have

changed the court’s ruling on defendant’s motion to suppress in light of Officer Kinney’s

testimony that the backpack made a “thud” sound when defendant dropped it and that it would

have made that sound on any surface.

¶ 12   At trial, Officer Kinney testified consistent with his testimony at the hearing on

defendant’s motion to suppress. Officer Kinney added that the unidentified man told the officers

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that he had observed a man place a handgun into a bag and directed the officers in the direction

of the man. The unidentified man described the perpetrator as a black male, wearing a red shirt

and holding a backpack. Officer Kinney denied that he patted down defendant before defendant

dropped the backpack, but acknowledged that in the arrest report he indicated that defendant

dropped the backpack during the pat down. After speaking with Officer Antonsen, Officer

Kinney learned that the gun in the backpack was a revolver loaded with six live rounds. Officer

Kinney also added that, as he tried to place defendant in custody, defendant fled through the

house and was not apprehended on the night in question.

¶ 13   Officer Antonsen testified consistent with his testimony at the hearing on defendant’s

motion to suppress. He added that, along with the gun, there was also an “application” bearing

defendant’s name inside the backpack. After recovering the gun, Officer Antonsen yelled “gun”

and released the ammunition from the cylinder of the gun. Officer Antonsen testified that

defendant was not arrested on the night in question, but that he encountered defendant on

September 21, 2011, and, after learning about an investigative alert for defendant, placed him in

custody.

¶ 14   The State introduced into evidence a certified copy of defendant’s 2006 conviction for

aggravated driving under the influence and then rested.

¶ 15   Samuel Moore, defendant’s friend, testified that at the time of defendant’s trial he was in

custody of the Illinois Department of Corrections. Moore stated that he and his cousin, Joshua

Jenkins, were walking towards defendant’s house when, about 15 feet away from the house, two

officers stopped them and patted them down. The officers told Moore and Jenkins to leave the

area and asked defendant to come down from the porch of his house. The officers then



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approached defendant, who was standing on the porch, and the officers and defendant started

arguing.

¶ 16   The trial court found defendant guilty of two counts of unlawful use or possession of a

weapon by a felon based on his possession of the firearm and ammunition. The court sentenced

defendant to five years’ imprisonment on the firearm count. In doing so, the court noted that

there was a finding of guilty on both counts and, without objection from either party, stated that a

sentence will be entered on the firearm count. Defendant appeals.

¶ 17                                        ANALYSIS

¶ 18   Before addressing defendant’s argument on appeal, we note that on September 12, 2013,

before the conclusion of defendant’s trial and nearly four years to the day of the Terry stop in

question, our supreme court issued its decision in People v. Aguilar, 2013 IL 112116. The

Aguilar court held that a portion of the Illinois aggravated unlawful use of a weapon statute,

which operated as an absolute ban on an individual’s right to possess a handgun for self-defense

outside the home, was facially unconstitutional under the second amendment of the United States

Constitution (U.S. Const., amend. II) and, thus, void ab initio. Aguilar, 2013 IL 112116, ¶¶ 19­

21; People v. Blair, 2013 IL 114122, ¶ 28 (the effect of finding a statute facially unconstitutional

is to render it “void ab initio” and therefore incapable of being enforced). Following Aguilar, our

supreme court has reaffirmed its central holding of the statute’s facial unconstitutionality in two

unanimous opinions. See People v. Mosley, 2015 IL 115872, ¶ 24; and In re Jordan G., 2015 IL

116834, ¶ 7.

¶ 19   On appeal, defendant contends, without reference to Aguilar, that the trial court erred in

denying his motion to quash arrest and suppress evidence because police lacked reasonable

suspicion to justify a Terry stop based on an uncorroborated tip that a black male in a red shirt

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placed a gun in a backpack and was walking East on 80th Place. Defendant claims that because

the officers failed to ascertain the reliability of the anonymous tip before acting on it, they lacked

the reasonable suspicion necessary to justify the Terry stop. Defendant thus maintains that the

recovered gun must be suppressed as a fruit of an illegal stop and that this court should outright

reverse his conviction.

¶ 20   Review of a trial court’s ruling on a motion to suppress follows a two-part standard of

review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard, a reviewing court

will review the trial court’s findings of fact for clear error while giving due weight to any

inferences drawn from those facts by the fact finder. Id. As such, the factual findings made by

the court in connection with a motion to suppress will not be disturbed on appeal unless they are

against the manifest weight of the evidence. Id. A reviewing court, however, is free to undertake

its own assessment of the facts in relation to the issues presented and draw its own conclusions in

deciding what relief, if any, should be granted. Id. In doing so, a reviewing court may look to

trial testimony as well as the evidence presented at the hearing on the motion to suppress. People

v. Hopkins, 235 Ill. 2d 453, 473 (2009), citing People v. Stewart, 104 Ill. 2d 463, 480 (1984). We

review de novo the trial court’s ultimate legal ruling of whether the arrest should be quashed and

the evidence suppressed. Luedemann, 222 Ill. 2d at 542.

¶ 21   The United States and Illinois Constitutions guarantee citizens the right against

unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6.

“Reasonableness under the fourth amendment generally requires a warrant supported by

probable cause.” People v. Sanders, 2013 IL App (1st) 102696, ¶ 12. However, our supreme

court has recognized three types of police-citizen encounters that do not constitute an

unreasonable seizure. Luedemann, 222 Ill. 2d at 544. These encounters are: (1) arrests, which

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must be supported by probable cause; (2) a brief investigative stop, also known as a Terry stop;

and (3) encounters that do not involve coercion or detention and therefore do not implicate fourth

amendment interests. Luedemann, 222 Ill. 2d at 544.

¶ 22   The encounter relevant to the case at bar is a Terry stop. In Terry v. Ohio, 392 U.S. at 27,

the United States Supreme Court held that “an officer may, within the parameters of the fourth

amendment, conduct a brief, investigatory stop of a citizen when the officer has a reasonable,

articulable suspicion of criminal activity, and such suspicion amounts to more than a mere

‘hunch.’ ” During a Terry stop, an officer may temporarily detain an individual for questioning

where the officer reasonably believes the individual has committed, or is about to commit, a

crime. Terry, 392 U.S. at 21-22; Sanders, 2013 IL App (1st) 102696, ¶ 13.

¶ 23   To justify a Terry stop, officers must be able to point to specific and articulable facts

which, considered with the rational inferences from those facts, make the intrusion reasonable.

Sanders, 2013 IL App (1st) 102696, ¶ 14; People v. Rhinehart, 2011 IL App (1st) 100683, ¶ 14.

Although reasonable suspicion is a less stringent standard than probable cause, an officer’s

hunch or unparticularized suspicion is insufficient. People v. Lampitok, 207 Ill. 2d 231, 255

(2003). When determining whether an investigatory stop is reasonable, we rely on an objective

standard and view the facts from the perspective of a reasonable officer at the time of the stop.

Sanders, 2013 IL App (1st) 102696, ¶ 14. A decision to make a Terry stop is a practical one

based on the totality of the circumstances. Id.

¶ 24   A Terry stop may be initiated based on information received from a member of the

public. Sanders, 2013 IL App (1st) 102696, ¶ 15. Generally, a tip from a “concerned citizen” is

considered more credible than information from a paid informant or a person who provided the

tip for personal gain. Id. A tip from an anonymous person may be sufficient to justify a Terry

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stop provided the information bears some indicia of reliability. People v. Henderson, 2013 IL

114040, ¶ 26. If an unidentified person places their anonymity at risk by speaking to officers in

person we may consider this fact when weighing the reliability of the tip. Sanders, 2013 IL App

(1st) 102696, ¶ 26. The tip must be “ ‘reliable in its assertion of illegality, not just in its tendency

to identify a determinate person.’ ” Id., quoting Florida v. J.L., 529 U.S. 266, 272 (2000).

¶ 25    In this court, both parties focus on the reliability of the tip received by the officers.

Defendant argues that the tip was not sufficiently reliable to provide the officers with a

reasonable suspicion of criminal activity to justify a Terry stop, while the State argues that it was

reliable. Neither party addresses the impact of the holding in Aguilar on the case at bar, and this

issue was not raised in the trial court. In denying defendant’s motion to suppress and his motion

to reconsider, the court stated that the tip from the unidentified man was sufficient to justify a

Terry stop because its contents were not available to anyone, it was predictive in nature, and the

officers corroborated the tip in a short period of time. We begin our analysis by first, briefly

addressing the reliability of the tip received by the officers.

¶ 26    Here, we agree with the trial court that, based on the evidence presented, the tip was

sufficiently reliable to justify a Terry stop. The record shows that the unidentified man in this

case approached Officers Kinney and Antonsen in person and engaged in a face-to-face

conversation with the officers. In doing so, the man risked his anonymity and the chance that the

officers might identify him in the future. As such, the unidentified man in this case has a greater

resemblance to a citizen informant than an anonymous one. See Sanders, 2013 IL App (1st)

102696, ¶ 31. Moreover, the face-to-face conversation allowed Officer Kinney to observe the

man’s demeanor and determine the man’s credibility as he gave the tip to the officer. See Id.

Officer Kinney testified that the man did not smell of alcohol and that his demeanor was

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“normal.” Apparently, Officer Kinney found the man credible because the officer “within

seconds” relocated to the area where the man said defendant would be walking eastbound.

¶ 27    During his conversation with the officers, the man explained the basis of his knowledge,

and accurately described defendant’s appearance and defendant’s direction of travel. Officer

Kinney testified at trial that the unidentified man told the officers that he had observed a man

place a handgun into a bag and that the man was a black male, wearing a red shirt and holding a

backpack. The officers corroborated the tip “within seconds” because the distance between the

tip and the Terry stop was a “block and half.” Moreover, the tip in this case did provide some

predictive information through which the officers were able to corroborate the tip i.e. that

defendant would be walking eastbound on 80th Place. See Sanders, 2013 IL App (1st) 102696,

¶ 25 (tip was sufficient to justify a Terry stop where the informant spoke to the officer in person,

explained the basis of his knowledge, and accurately described defendant’s direction of travel).

This information, under the totality of the circumstances, was sufficiently reliable to allow

Officer Kinney to initiate a Terry stop. See Sanders, 2013 IL App (1st) 102696, ¶ 31.

¶ 28    However, our analysis cannot end here. Rather, the Terry stop in this case is valid only if

the contents of the tip, specifically, defendant’s possession of the handgun, provided the officers

with reasonable suspicion of criminal activity. There is no question that on September 15, 2009,

the date of the Terry stop, Illinois law completely prohibited the possession of a handgun in

public, if the gun was uncased, loaded, and immediately accessible at the time of the offense. See

720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). As such, given that defendant’s reported

conduct was illegal at the time, and that the tip was sufficiently reliable, the officers could

reasonably suspect that defendant was involved in criminal activity and were justified in

initiating a Terry stop.

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¶ 29   That said, following defendant’s Terry stop, that portion of the Illinois aggravated

unlawful use of a weapon statute, which banned the possession of a handgun in public and

formed the basis of the officers’ reasonable suspicion of criminal activity to justify the Terry

stop, was held to be facially unconstitutional by Aguilar and void ab initio. See Aguilar, 2013 IL

112116, ¶¶ 19-21. Therefore, while we agree that when the officers initiated the Terry stop they

had reason to believe that defendant was in violation of a law that was valid at the time, we must

nevertheless consider the significance of the fact that the statute has since been declared

unconstitutional if we are to resolve the ultimate question of whether defendant’s constitutional

rights were violated.

¶ 30   Post-Aguilar, a tip, such as the one here, that merely mentions a gun in defendant’s

possession is not sufficient, without any more information regarding defendant’s criminal

conduct, to provide officers with reasonable suspicion of criminal activity to justify a Terry stop.

Stated differently, the portion of the AUUW statute that justified the Terry stop at the time is no

longer valid and, thus, would not justify such a stop today because the reported conduct is no

longer criminal.

¶ 31   We have reviewed the record and have found no other basis for reasonable suspicion of

criminal activity to justify defendant’s Terry stop. The record shows that the officers were not

familiar with defendant prior to receiving the tip that he was in possession of a handgun. The tip

did not contain any information that defendant was involved in other criminal activity or whether

he had been issued a FOID card. Although defendant was later charged, in part, with violating

the FOID-card portion of the AUUW statute, this does not mean that the officers, at the time they

received the tip, had enough information for a reasonable suspicion of criminal activity to justify

a Terry stop. Moreover, the officers did not testify that they observed defendant committing a

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crime or that they had reason to believe that defendant was connected with any other crime

independent of his possession of the gun. As such, even after receiving the tip, the officers did

not have enough information for a reasonable suspicion of criminal activity that would justify a

Terry stop today. Therefore, a constitutional violation occurred in this case, and although it was

not considered a constitutional violation at the time, we cannot, post-Aguilar, find otherwise.

Accordingly, we conclude that the Terry stop in this case constituted an unreasonable seizure and

violated defendant’s constitutional rights.

¶ 32   Having so found, we next address whether the gun recovered as a result of the Terry stop

should be suppressed. When evidence is obtained in violation of the fourth amendment, the

exclusionary rule precludes the use of such evidence against a defendant in a criminal

proceeding. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974),

citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The purpose of the exclusionary rule

is not to provide a constitutional right to an aggrieved party but, rather, to act as a deterrent

against improper conduct by government agents. United States v. Leon, 468 U.S. 897, 906, 104

S.Ct. 3405, 82 L.Ed.2d 677 (1984), citing Calandra, 414 U.S. at 348.

¶ 33   Given this purpose, the United States Supreme Court has created a “good-faith

exception” to the exclusionary rule, which allows the use of evidence where an officer is “acting

as a reasonable officer would and should act in similar circumstances” albeit on a subsequently

invalidated search warrant. Leon, 468 U.S. at 919-20. In Illinois v. Krull, the Supreme Court

extended the good-faith exception to encompass a situation where an officer acts in objectively

reasonable reliance on a statute authorizing warrantless administrative searches, despite the

statute ultimately being found to violate the fourth amendment. Illinois v. Krull, 480 U.S. 340,

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349-50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The Supreme Court has also ruled that the

exclusionary rule does not necessarily bar evidence obtained by police in a search based on a

violation of a law later invalidated as unconstitutional. See Michigan v. DeFillippo, 443 U.S. 31,

38-9, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

¶ 34   However, in People v. Krueger, 175 Ill. 2d 60, 61 (1996), our supreme court declined to

adopt the Krull good-faith exception after finding that the Illinois Constitution barred its

application. Specifically, the Krueger court held that evidence obtained pursuant to a “no-knock”

statute, which it found violated the defendant's fourth amendment rights, may not be admitted at

trial under the good-faith exception to the exclusionary rule. Id. at 62-63, 75-76. In reaching this

conclusion, the Krueger court stated that if it were to recognize a good-faith exception to our

state exclusionary rule it would “provide a grace period for unconstitutional search and seizure

legislation, during which time our citizens’ prized constitutional rights can be violated with

impunity.” Id. at 75.

¶ 35   After Krueger, our supreme court issued its decision in People v. Carrera, 203 Ill. 2d 1,

16-17 (2002), in which it refused to apply the good-faith exception to the exclusionary rule based

on the void ab initio doctrine and its concern that, to do otherwise, would create a “grace period”

for unconstitutional search and seizure. In Carrera, Chicago police officers arrested the

defendant outside of the city of Chicago pursuant to an extraterritorial jurisdiction arrest statute

that was later declared unconstitutional and void ab initio. Id. at 3, 8, 16. The defendant filed a

motion to quash his arrest and suppress evidence, arguing the officers lacked authority to arrest

him outside of Chicago. Id. at 7. The circuit court denied the motion. Id. On appeal, this court

reversed the circuit court’s order and remanded for further proceedings. Id. at 9-10. The State

appealed, arguing, in relevant part, that the good-faith exception to the exclusionary rule should

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apply because the officers did not violate the defendant’s substantive constitutional rights when

effectuating the extraterritorial arrest. Id. at 13. The Carrera court acknowledged the State’s

argument, but elected to resolve the case “on narrow grounds,” finding that the void ab initio

doctrine dictated the conclusion it reached. Id. at 13-14.

¶ 36   In doing so, our supreme court in Carrera explained that a statute which is facially

unconstitutional is void ab initio and confers no right, imposes no duty and affords no protection.

Id. at 14. “It is as though no such law had ever been passed.” Id. As such, the Carrera court

refused to apply the good-faith exception to the defendant’s case, reasoning that to do so “would

run counter to *** void ab initio jurisprudence—specifically, that once a statute is declared

facially unconstitutional, it is as if it had never been enacted.” Id. at 16. Echoing the Krueger

court’s concern with a “grace period for unconstitutional search and seizure,” the Carrera court

explained that to give legal effect to the historical fact that the amendment existed when the

defendant was arrested “would effectively resurrect the amendment and provide a grace period

*** during which our citizens would have been subject to extraterritorial arrests without proper

authorization.” Id. The Carrera court declined to recognize such a grace period and held that an

arrest executed pursuant to a statute that is later found to be unconstitutional is unlawful, and

evidence seized as a result of that arrest is subject to the exclusionary rule. Id. at 16-17.

¶ 37   Here, while we recognize that defendant was the subject of a Terry stop, rather than an

arrest, we nevertheless find Carrera instructive and, based on the language therein, conclude that

the void ab initio doctrine precludes the application of the good-faith exception to the

exclusionary rule. As in Carrera, we decline to apply the good-faith exception in the present

case and thereby recognize the historical fact that the now invalidated portion of the AUUW

statute existed at the time of defendant’s Terry stop. Were we to do so, we too would effectively

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be resurrecting that portion of the AUUW statute and providing a grace period during which

individuals would have continued to be subject to Terry stops for violating that portion of the

statute that was invalidated by Aguilar. People v. Holmes, 2015 IL App (1st) 141256, ¶ 30,

appeal allowed No. 120407 (2016). Accordingly, we hold that defendant’s Terry stop, initiated

on the basis of reasonable suspicion of criminal activity pursuant to the now invalidated portion

of the AUUW statute, is unlawful and evidence seized as a result of the stop is subject to the

exclusionary rule.

¶ 38   In support of this conclusion, we note that this court, in Holmes, recently addressed a

similar issue and, based on the language in Carrera, reached a similar conclusion. Holmes, 2015

IL App (1st), ¶ 30. In Holmes, the defendant was arrested when a police officer observed a

revolver in his waistband. Id. ¶ 1. After placing the defendant under arrest, the officer discovered

that he did not have a valid FOID card. Id. The defendant was subsequently charged with two

counts of AUUW for carrying an uncased, loaded, and immediately accessible firearm, and two

counts of AUUW for carrying a firearm without a valid FOID card. Id. ¶ 5. Given our supreme

court’s decision in Aguilar, the State conceded that the two counts of AUUW based on the

defendant’s possession of an uncased, loaded, and immediately accessible firearm should be

dismissed and entered a nolle prosequi on those counts. Id.

¶ 39   The defendant then filed a motion to quash his arrest and suppress evidence with respect

to the two remaining AUUW counts, arguing that his arrest was unconstitutional because police

lacked probable cause to believe that he was committing a crime. Id. ¶ 6. The defendant noted

the decision in Aguilar and asserted that the good-faith exception to the exclusionary rule did not

apply because police were enforcing an unconstitutional statute. Id. In support of this assertion,

the defendant relied on Carrera. Id. The circuit court granted the defendant’s motion, finding

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that the officer lacked probable cause because he did not know whether the defendant had a valid

FOID card and was investigating the defendant for violating a law later found to be

unconstitutional and void ab initio. Id. ¶ 9. In so doing, the circuit court noted that if a statute is

void ab initio, it is as if it never existed and thus cannot give rise to probable cause. Id.

¶ 40    The State appealed, arguing that Carrera was distinguishable and that the circuit court

should have recognized a good-faith exception to the exclusionary rule because the officer was

operating under the law valid at the time of the defendant’s arrest and, thus, the defendant’s

fourth amendment rights were not violated. Id. ¶ 13. This court affirmed, relying on the language

in Carrera concerning the void ab initio doctrine. Id. ¶ 36-38. Specifically, this court in Holmes

found that the same concern with a “grace period” was implicated on the facts of the case before

it, where individuals would have continued to be subject to arrests for violating the portion of the

AUUW statute that was invalidated in Aguilar. Id., ¶ 30. We see no reason to depart from the

reasoning in Carrera and Holmes.

¶ 41    We briefly note that in Holmes, this court pointed out that, in granting the defendant’s

motion to suppress, the trial court stated that the defendant’s case was “kind of unfortunate

because the officer didn’t do anything wrong at the time” and the officer could have effectuated a

valid Terry stop and inquired right away whether the defendant had a FOID card. Id. ¶ 9. This

statement, made without reference to legal authority, implies that had the defendant answered in

the negative the officers could have effectuated a lawful arrest. Here, as mentioned, and as in

Holmes, the officers did not do anything wrong at the time of the Terry stop. However, as in

Holmes, the officers also did not inquire whether defendant had a FOID card and instead

proceeded to pat him down. While at the time, the officers were justified in doing so under the

then effective portion of the AUUW statute, that portion of the statute has since been declared

                                                 - 17 ­
1-14-1040



void ab initio—“as if it had never been enacted”—and thus, having never been enacted, cannot

give rise to reasonable suspicion of criminal activity for defendant’s Terry stop. Given the

officers’ lack of reasonable suspicion, defendant’s Terry stop and seizure of the gun were

unconstitutional.

¶ 42                                      CONCLUSION

¶ 43   For the reasons stated, we reverse the order of the trial court denying defendant’s motion

to quash arrest and suppress evidence.

¶ 44   Reversed and remanded.




                                              - 18 ­
        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



                 THE PEOPLE OF THE STATE OF ILLINOIS,


                               Plaintiff-Appellee,


                                       v. 


                             LAMONT THOMAS,


                              Defendant-Appellant. 



                                 No. 1-14-1040        


                           Appellate Court of Illinois

                        First District, FIFTH DIVISION


                               December 23, 2016



     JUSTICE LAMPKIN delivered the judgment of the court, with opinion. 


Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion. 



                 Appeal from the Circuit Court of Cook County.

                  The Hon. Thomas M. Davy, Judge Presiding.



                        COUNSEL FOR APPELLANT
        Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601

                        Patricia Mysza, Deputy Defender

                    OF COUNSEL: Benjamin A. Wolowski



                       COUNSEL FOR APPELLEE
      Kimberly M. Foxx, Cook County State’s Attorney, Chicago, IL 60602

       OF COUNSEL: Alan Spellberg, John E. Nowak and Jessica R. Ball

