                                                                           Digitally signed by
                                                                           Reporter of
                                                                           Decisions

                           Illinois Official Reports                       Reason: I attest to
                                                                           the accuracy and
                                                                           integrity of this
                                                                           document
                                  Appellate Court                          Date: 2019.08.12
                                                                           13:18:10 -05'00'



                      People v. Thomas, 2019 IL App (1st) 170474



Appellate Court        THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption                v. MARKEESE THOMAS, Defendant-Appellee.



District & No.         First District, Second Division
                       Docket No. 1-17-0474



Filed                  March 19, 2019
Modified upon
denial of rehearing    May 14, 2019



Decision Under         Appeal from the Circuit Court of Cook County, No. 15-CR-5636; the
Review                 Hon. Steven G. Watkins, Judge, presiding.



Judgment               Reversed and remanded.


Counsel on             Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal                 John E. Nowak, and Tasha-Marie Kelly, Assistant State’s Attorneys,
                       of counsel), for the People.

                       Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl,
                       Assistant Public Defender, of counsel), for appellee.
     Panel                       JUSTICE LAVIN delivered the judgment of the court, with opinion.
                                 Presiding Justice Mason and Justice Pucinski concurred in the
                                 judgment and opinion.


                                                   OPINION

¶1        Defendant Markeese Thomas was charged with aggravated unlawful use of a weapon
      (AUUW) after police observed defendant, while in the common area of an unlocked multiunit
      apartment building, hand off a gun to his friend and then flee upstairs into an apartment unit.
      Defendant filed a motion to quash his arrest and to suppress the evidence, which the circuit
      court granted. The State now appeals, arguing that there was no fourth amendment violation
      since defendant was not a resident of the apartment unit into which he fled and since the offense
      occurred in the common area of the building. The State further argues police had probable
      cause for the arrest even without knowing that defendant lacked licenses under both the
      Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01 et seq. (West
      2014)) and the Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/1 et seq.
      (West 2014)) and, regardless, defendant had abandoned the weapon before his arrest, thus
      precluding application of the exclusionary rule. For the reasons to follow, we agree with the
      State that the circuit court’s judgment must be reversed.

¶2                                          BACKGROUND
¶3        Defendant was charged with various counts of aggravated unlawful use of a weapon
      following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in
      Chicago, on March 25, 2015. The charges, in sum, asserted that defendant illegally possessed
      a handgun while not on his land or in his home (or another person’s as an invitee) and without
      a valid Firearm Owners Identification (FOID) card or concealed carry license. See 720 ILCS
      5/24-1.6 (West 2014). 1
¶4        Defendant subsequently filed a motion to quash his arrest and suppress evidence illegally
      seized. 2 He asserted he was illegally stopped absent reasonable suspicion and arrested without
      probable cause and the items recovered were a direct result of this unlawful arrest. At the

          1
             As discussed in further depth later, in People v. Aguilar, 2013 IL 112116, ¶ 20, the supreme court
      held that on its face section 24-1.6(a)(1), (a)(3)(A), (d) of the aggravated unlawful use of a weapon
      statute, found in the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)),
      violated the second amendment right to keep and bear arms because it prohibited carrying a firearm
      outside the home. Aguilar, however, did not vitiate the entire AUUW statute since the right to bear
      arms outside the home is still subject to meaningful regulation. Aguilar, 2013 IL 112116, ¶ 21. To that
      end, in People v. Mosley, 2015 IL 115872, ¶ 31, the supreme court recently upheld the constitutionality
      in the aggravated unlawful use of a weapon statute of the FOID card requirement in subsection (a)(3)(C)
      and the 21-and-older requirement in subsection (a)(3)(I) for gun possession outside the home (720 ILCS
      5/24-1.6(a)(1), (a)(2), (a)(3)(C), (a)(3)(I) (West 2014)). Here, the parties do not dispute the gun charges
      that were lodged in this case.
           2
             Although entitled “MOTION TO SUPPRESS EVIDENCE ILLEGALLY SEIZED,” the substance
      of defendant’s motion sought to quash his arrest and also to suppress evidence, and both matters were
      also the subject of the hearing.

                                                      -2-
     ensuing hearing, Officer Caribou, of the Chicago police, first testified that on the day in
     question, he was on routine patrol with his partner, Officer Pena, in an unmarked car and in
     plainclothes, although Officer Caribou wore his police vest bearing his star number, name, and
     the word, “police.” Officer Caribou had worked that area many times and made multiple arrests
     for narcotics, gangs, and drugs. He was patrolling due to the illegal activities of two rival gangs.
     Around 7:30 p.m., as they drove slowly down Kenwood Avenue, from about five feet away,
     they observed four or five males “loitering on the sidewalk in front” of the aforementioned
     apartment building. At that point, Officer Caribou saw two of the males, later identified as
     defendant and his friend Turner, “flee into the building.” At that moment, Officer Caribou did
     not observe defendant holding a gun. On cross-examination, Officer Caribou specifically stated
     that defendant looked in his direction just before fleeing. After curbing his vehicle, Officer
     Caribou jumped out and followed the two men.
¶5        In response to defense counsel’s question, “Had you announced your office any time prior
     to that?” Officer Caribou stated, “I am pretty sure we—we always say police.” He then clarified
     that, although he did not announce his office while driving past the building, he did announce
     it as he left his vehicle on the sidewalk and “gave chase” into the building. Significantly, at
     that point defendant and Turner were already inside, and Officer Caribou lost sight of them for
     several seconds, as the door closed behind them. The other members of the group simply stood
     still on the sidewalk.
¶6        Subsequently, Officer Caribou “reopened the door,” then stepped inside the building to
     what he described was the “common area.” The evidence thus indicates that the building was
     unlocked, although Officer Caribou never explicitly stated this. Once inside, Officer Caribou
     observed a hallway, and to the right was a first-floor stairwell, where defendant and Turner
     stood. Just after the door closed behind Officer Caribou, both defendant and Turner looked in
     his direction. Officer Caribou then saw that defendant had a firearm, which defendant promptly
     handed to Turner before fleeing to the second floor. At that point, Officer Caribou “probably”
     said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the
     door behind him. Turner, who was “locked out,” froze and then threw the handgun on the
     second-stair landing. Turner was detained and handed off to Officer Pena, who had just arrived
     inside the building.
¶7        Officer Caribou recovered the loaded firearm, “a [.]380,” and returned to the locked
     apartment unit. A female, whom Officer Caribou believed was defendant’s girlfriend, opened
     the door. Officer Caribou arrested defendant, handcuffing him just outside the unit. Defendant
     was transported to the police station, where he received Miranda warnings. Only after that did
     officers learn defendant did not have a FOID or concealed carry card.
¶8        In response to the State’s questions on cross-examination, Officer Caribou stated that he
     had not stopped or detained defendant before defendant and Turner initially fled into the
     building. At the police station, Officer Caribou also discovered that defendant resided at 7644
     South Stewart Avenue.
¶9        The defense rested, and the State moved for a directed finding, arguing the defense had not
     met its burden of showing defendant’s fourth amendment rights were violated. The State
     argued the weapon was recovered in the common area of the apartment building, where




                                                  -3-
       defendant had no privacy interest. Moreover, he was not a resident of the apartment unit, so he
       had no “standing.” 3 Accordingly, there was no stop, search, or seizure of defendant that day.
¶ 10        The defense countered that there was in fact a stop but no reasonable suspicion to support
       it “from the inception.” That is, the officer’s several-second observation of the loitering group
       did not amount to reasonable suspicion to pursue defendant. Defense counsel emphasized the
       two individuals fled into the building even when officers had not yet announced their office.
       There was no suggestion that defendant and Turner knew police were in the vehicle or fled at
       the sight of the officers (a matter counsel conceded could lead to reasonable suspicion). The
       defense noted it was a crime-ridden area where one might expect flight at the sight of a slow-
       moving vehicle. In response to the judge’s query, counsel stated that defendant’s privacy rights
       began at the point that defendant entered the building. The defense elaborated that defendant
       entered the apartment unit and locked the door behind him, with his girlfriend eventually
       opening the door, all of which suggested that “would be enough to establish” defendant “may
       be a resident of this building.” The defense thus asserted that defendant had a reasonable
       expectation of privacy in the building. The defense further argued that defendant was arrested
       prior to any knowledge as to the lack of a FOID or concealed carry card, so there was no
       probable cause for the arrest, and no exigent circumstances justifying entry into the building.
¶ 11        The court denied the State’s motion for a directed verdict, declaring, “[a]t this point the
       petitioner has met [his] burden.” The State then rested. Closing arguments largely reflected
       arguments already made. The State added that defendant had abandoned the weapon before
       entering the apartment unit. According to the State, even assuming for the sake of argument
       that defendant lived in the apartment, he still had no privacy interest in the building’s common
       area. The State further argued that the police had probable cause to arrest defendant on seeing
       him expose his gun in public and tender it to someone else, contrary to the concealed carry
       law. Defense counsel, on the other hand, argued such actions occurring inside a residential
       apartment complex did not give rise to probable cause for arrest without police first verifying
       whether defendant had gun licenses. The defense argued probable cause, instead, arose at the
       station, and the court agreed.
¶ 12        In conclusion, the court noted that there was no evidence of criminal activity from the
       outset “to suggest that this defendant should be stopped in any way.” The court found that
       outside the apartment complex, defendant was not committing any crime, and there was no
       reason to believe he was committing a crime, yet police chased him anyway. The court stated
       that it was during the “pursuit” that police observed a weapon. However, given the laws
       permitting the public to possess guns outside the home via a FOID card and concealed carry
       license, the court ruled that when the police observed defendant with a handgun, they did not
       have probable cause to stop, seize, and then arrest defendant. The court noted that the gun was
       not fully exposed but rather found that “a moment in time in your hand should be partially
       concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun
       recovered “subsequent to the violation of this defendant’s constitutional rights” had to be
       suppressed under the exclusionary rule. The court granted defendant’s motion to quash his
       arrest and suppress evidence.


          3
           The term “standing” is no longer used and has been replaced with privacy expectation. People v.
       Martin, 2017 IL App (1st) 143255, ¶ 19.

                                                    -4-
¶ 13                                            ANALYSIS
¶ 14       The State appeals from the trial court’s order granting defendant’s motion to suppress. On
       appeal, we give great deference to the trial court’s findings of fact when ruling on a motion to
       suppress and will reverse those findings only if they are against the manifest weight of the
       evidence, i.e., when the opposite conclusion is apparent or the findings are unreasonable,
       arbitrary, or not based on the evidence. People v. Burns, 2016 IL 118973, ¶ 15; People v.
       Lomax, 2012 IL App (1st) 103016, ¶ 19. However, a reviewing court remains free to undertake
       its own assessment of the facts in relation to the issues presented and may draw its own
       conclusions when deciding what relief should be granted. People v. Pitman, 211 Ill. 2d 502,
       512 (2004). As such, the trial court’s legal ruling on whether the evidence should be suppressed
       is reviewed de novo. People v. Bonilla, 2018 IL 122484, ¶ 8. The question of law at issue in
       this case is whether a fourth amendment violation occurred when the police entered an
       unlocked multiunit apartment building without a warrant and, once inside the common area,
       observed defendant hand his friend a gun just before both fled upstairs, with defendant entering
       his purported apartment unit while the friend then discarded the gun. As set forth above, the
       State argues that for a variety of reasons, defendant had no reasonable expectation of privacy
       in the apartment building or apartment unit and there was no fourth amendment violation in
       this case.
¶ 15       The fourth amendment to the United States Constitution protects people from unreasonable
       searches and seizures, as does the Illinois Constitution’s search and seizure provision. U.S.
       Const., amend. IV; Ill. Const. 1970, art. I, § 6; People v. Smith, 152 Ill. 2d 229, 244 (1992). To
       prevail on a motion to suppress evidence at the trial level, the defendant bears the burden of
       producing evidence and establishing a prima facie case that the search and seizure was
       unreasonable. People v. Martin, 2017 IL App (1st) 143255, ¶ 18; People v. Carodine, 374 Ill.
       App. 3d 16, 21 (2007). A prima facie showing means that the defendant has the primary
       responsibility for establishing the factual and legal bases for the motion to suppress. People v.
       Brooks, 2017 IL 121413, ¶ 22. However, once a defendant makes a prima facie showing of an
       illegal search and seizure, the burden then shifts to the State to produce evidence justifying the
       intrusion. Martin, 2017 IL App (1st) 143255, ¶ 18. However, the ultimate burden remains with
       the defendant. Brooks, 2017 IL 121413, ¶ 22.
¶ 16       Reasonableness under the fourth amendment generally requires a warrant supported by
       probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant
       requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop
       (and therefore necessarily seize) a person for temporary questioning if he reasonably believes
       the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91. Thus,
       a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person
       believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001). There are also
       encounters between police and private citizens that involve no coercion or detention and thus
       do not implicate the fourth amendment. People v. Estrada, 394 Ill. App. 3d 611, 616 (2009).
       In other words, if there is no unreasonable government intrusion, there is no search or seizure
       subject to the warrant clause of the fourth amendment. People v. Woodrome, 2013 IL App
       (4th) 130142, ¶ 19.




                                                   -5-
¶ 17                       Initial Encounter: Reasonable Suspicion and Flight
¶ 18       We begin our step-by-step analysis with the police officers’ initial interaction with
       defendant. As set forth, police drove slowly down the street in an unmarked vehicle in the early
       evening hours. The area in question was known for narcotics, gangs, and drugs, and Officer
       Caribou testified police were patrolling due to the activities of two rival gangs. As the officers
       approached defendant and his cohort loitering on the sidewalk, defendant looked directly at
       the officers, then defendant and Turner fled into the apartment building and closed the door. 4
       At that point, the police exited their vehicle, announced their office, and subsequently chased
       the men.
¶ 19       Although the trial court’s ruling suggests the police officers were unjustified at the outset
       in chasing defendant and Turner, and defendant certainly set forth this argument below, an
       individual’s unprovoked flight on seeing police in an area known for crime is suggestive of
       wrongdoing and may justify police suspecting that individual of criminal activity, which
       warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People
       v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113. That the defendant’s flight
       from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain
       that individual to resolve any ambiguity. Wardlow, 528 U.S. at 125. The determination of
       reasonable suspicion must be based on commonsense judgments and inferences about human
       behavior, and due weight must be given to the reasonable inferences the officer is entitled to
       draw from the facts in light of his experience. Id.; People v. Sorenson, 196 Ill. 2d 425, 433
       (2001).
¶ 20       Here, the most rational inference from Officer Caribou’s testimony is that the police
       presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable
       suspicion. See People v. Jackson, 2012 IL App (1st) 103300, ¶ 23. While defense counsel
       suggested that defendant and Turner could have mistaken the unmarked police vehicle for a
       potential drive-by shooter, for example, this innocent explanation does not lessen the officers’
       objective in resolving any ambiguity under the law. Although defendant bore the burden of
       production, he did not himself testify at the hearing, so we do not have any evidence of his
       subjective reason for fleeing. Cf. In re Mario T., 376 Ill. App. 3d 468, 473 (2007) (finding the
       defendant established his prima facie case, where he testified that he was visiting his sister and
       thus doing nothing unlawful at the time he was stopped and frisked). In fact, defendant and
       Turner were the only two to flee among a group of four or five men, which weakens defense
       counsel’s argument.
¶ 21       Regardless, defendant and Turner had already entered the building before the officers even
       announced their office and chased the two men. Contrary to the trial court’s finding, there was
       no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where
       there was no real encounter. See Thomas, 198 Ill. 2d at 112 (holding that a person must submit
       to a show of authority before that show of authority can constitute a seizure).




           At oral arguments, defense counsel suggested that the police officers were essentially a block away
           4

       when they observed the loitering group. We find this interpretation contrary to the record, where Officer
       Caribou testified that he was about “five feet” from the group when he made his observations.

                                                       -6-
¶ 22                           Police Entry Into Unlocked Apartment Building:
                              Privacy Expectation in Apartment Common Area
¶ 23        We turn to the next stage of the encounter, Officer Caribou’s entry into the unlocked
       apartment building. Notably, the fourth amendment protects people, not places. Pitman, 211
       Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where
       those people are. Id. As such, a defendant who objects to the search of a particular area must
       prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective
       expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S.
       347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d
       at 22. An expectation of privacy must have a source outside the fourth amendment by reference
       to concepts of real or personal property or to understandings that are recognized and permitted
       by society. Pitman, 211 Ill. 2d at 514. A “search” for purposes of the fourth amendment occurs
       when an expectation of privacy that society is prepared to consider reasonable is infringed.
       Carodine, 374 Ill. App. 3d at 22.
¶ 24        The State argues there was no reasonable expectation of privacy in the common area of the
       unlocked apartment building, which police were permitted to enter. The State further asserts
       that it was in this common area that police observed defendant “committing a criminal offense”
       and, as such, there was no “search” at issue. We are inclined to agree.
¶ 25        Historically, Illinois courts have found that there is no reasonable expectation of privacy
       in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App
       (1st) 143255, ¶ 20 (cases cited therein). In that sense, Smith, 152 Ill. 2d 229, is instructive.
       There, police officers entered an apartment building around 10 p.m. through an unlocked
       backdoor accessible to other tenants, the landlord, social guests, and other invitees. Officers,
       while standing in the hallway, then overheard a conversation coming from inside the
       defendant’s apartment, wherein the defendant spoke with a raised voice and implicated himself
       in a murder under investigation. Id. at 240. Our supreme court observed that the officers had
       entered an unlocked common-area hallway where there was a diminished expectation of
       privacy and where they had a legal right to be. The Smith court also observed that “the officers
       used no artificial means to enhance their ability to hear defendant’s conversation.” Id. at 246.
       Based on all those factors taken together, the court held no fourth amendment “search” was
       implicated because the defendant did not have a reasonable expectation of privacy in his
       conversation. Id. at 245-46; see also Carodine, 374 Ill. App. 3d at 24 (holding the defendant
       did not have an objective expectation of privacy to the dryer vent because it was located in a
       common area where other tenants of the building, the landlord, and members of the public had
       access; therefore, the officer’s opening and reaching inside of the vent was not a fourth
       amendment “search”). Building on Smith, it is well-settled that once an officer is legitimately
       on the property, in an area impliedly open to the public, he may properly observe any
       “ ‘evidence lying about in the open.’ ” People v. Redman, 386 Ill. App. 3d 409, 418-19 (2008).
       That is, a search does not occur when officers observe what is in open view. Id.
¶ 26        While defendant relies on a recent supreme court case, Bonilla, 2018 IL 122484, 5 we find
       it distinguishable. There, the police while acting on a tip regarding drug activity, entered the

           5
            In his opening brief, defendant relied on the appellate court’s case in People v. Bonilla, 2017 IL
       App (3d) 160457, because the supreme court had not yet issued its opinion. Following its issuance, we
       granted defendant’s motion for leave to cite the supreme court’s Bonilla case as additional authority.

                                                      -7-
       defendant’s unlocked apartment building and then proceeded to the threshold of his third-floor
       unit doorway, where a drug-detection dog alerted officers to the presence of narcotics. It was
       on this basis that officers obtained a search warrant. Id. ¶ 3. The supreme court concluded the
       threshold of the apartment door constituted “curtilage” or an area immediately surrounding the
       defendant’s home where his privacy expectations were most heightened, and this was a
       constitutionally protected area. Id. ¶ 27. The use of a drug-sniff dog at the threshold absent a
       warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment
       rights. Id. ¶ 32.
¶ 27       In reaching its conclusion, Bonilla relied on the well-established analytic framework in
       Florida v. Jardines, 569 U.S. 1 (2013). 6 There, police officers entered the front porch of
       defendant’s home and used a trained narcotics dog to sniff at the door for drug evidence. They
       then used the positive drug-sniff to obtain a warrant and search the home. Id. at 3-4. The United
       States Supreme Court held that, first, the officers’ investigation took place in a constitutionally
       protected area, as the court found the front porch clearly constituted cartilage (id. at 6-7), and,
       second, the conduct was an unlicensed physical intrusion not explicitly or implicitly permitted
       by the homeowner (id. at 7-9). It was therefore a “search” in violation of the fourth amendment.
       Id. at 11-12. Having disposed of the case under the “property-based” approach, the Jardines
       Court stated there was no need to also consider the additional factor of whether the police
       violated the defendant’s expectation of privacy as set forth in the Supreme Court’s earlier
       decision in Katz. Id. at 11.
¶ 28       Bonilla similarly relied on Burns, 2016 IL 118973, which had “nearly identical” facts and
       also employed the Jardines framework. Bonilla, 2018 IL 122484, ¶ 25. In Burns, our supreme
       court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s
       apartment landing and door, located within a locked apartment building, violated the
       defendant’s fourth amendment rights. Burns, 2016 IL 118973, ¶ 44. Burns noted the landing
       was clearly marked “with limited use and restricted access” such that it, and therefore the door
       threshold, constituted curtilage. Id. ¶ 39. The Burns court emphasized that the building
       entrances were locked and that “this case [was] distinguishable from situations that involve
       police conduct in common areas readily accessible to the public.” Id. ¶ 41.
¶ 29       Building on Burns, Bonilla nonetheless held that even the unlocked status of the apartment
       building in its case was a distinction without difference, where the police clearly entered the
       apartment unit’s curtilage (the door’s threshold) to conduct the dog-sniff for drugs. The court
       further reasoned that the threshold was analogous to the front door in Jardines. In holding this,
       Bonilla observed that Smith, discussed above, was distinguishable as it concerned a “much
       different” scenario relating to a person’s “ ‘reasonable expectation of privacy in things
       overheard by the police while standing in a common area of an unlocked apartment building.’ ”
       Bonilla, 2018 IL 122484, ¶ 42 (quoting Burns, 2016 IL 118973, ¶ 58). That is, a drug-sniff
       search was not the same as overhearing a conversation. Yet, Bonilla also clarified that Smith


           6
            Bonilla added that the United States Supreme Court’s recent decision, Collins v. Virginia, 584
       U.S. ___, 138 S. Ct. 1663 (2018), further supported its determination. Bonilla, 2018 IL 122484, ¶ 28.
       In Collins, police entered a partially concealed portion of a driveway abutting the defendant’s house to
       gather evidence (Collins, 584 U.S. at ___, 138 S. Ct. at 1668), and Collins concluded this physical
       intrusion invaded the defendant’s fourth amendment right in the item searched and in the curtilage of
       his home (id. at ___, 138 S. Ct. at 1670-71).

                                                      -8-
       did not categorically stand for the proposition that “tenants have no expectation of privacy in
       common areas of either locked or unlocked apartment buildings.” (Emphases added.) Id. This
       suggests that the analysis of what constitutes a constitutionally protected area and unlicensed
       physical intrusion in a multiunit building must be more fact-driven and nuanced. See id.; see
       also Burns, 2016 IL 118973, ¶ 98 (Garman, J., specially concurring) (noting that, not every
       police entry into the common area of an apartment building will be a search, and further, that
       shared control over a multiunit building “directly impacts the license that may be granted to
       the police or public”).
¶ 30       Viewing the particular facts in the present case, we conclude they are less like Bonilla and
       more like Smith, as defendant failed to produce evidence showing the officers’ investigation
       took place in a constitutionally protected area or where he had a reasonable expectation of
       privacy or that it resulted in an unlicensed physical intrusion. Here, Officer Caribou entered
       the unlocked apartment building at a reasonable hour and stepped into what he described was
       the “common area” of the building. Our supreme court has expressly stated that the “term
       ‘common area’ suggests an area left open for common or public use,” which necessarily
       negates any expectation of privacy. People v. Janis, 139 Ill. 2d 300, 318 (1990); Smith, 152 Ill.
       2d at 245-46. Defendant did not present any testimony that the unlocked multiunit building
       was customarily locked or had a “no trespass” sign posted outside. Although Officer Caribou
       did not testify in detail about the building’s entryway and composition, the only logical
       inference from his testimony is that he stood in a common area that was accessible to any other
       tenant, landlord, delivery person, or member of the public. 7 As such, we cannot say his entry
       was unlawful. See Smith, 152 Ill. 2d at 246.
¶ 31       We thus reject defendant’s contention on appeal that the location where Officer Caribou
       observed the gun hand-off was curtilage, i.e., the area immediately surrounding and associated
       with the home. The record evidence simply does not support that conclusion. 8 See United
       States v. Dunn, 480 U.S. 294, 301 (1987) (identifying factors for determining curtilage); cf.
       Martin, 2017 IL App (1st) 143255, ¶¶ 3-5, 28 (noting police committed fourth amendment
       violation by reaching inside the outer door frame to obtain incriminating evidence, where the
       defendant’s mother specifically testified at the motion to suppress hearing that the space
       between the interior and exterior doors of her two-flat building was private and not subject to
       trespassing with the exterior door normally locked). That is, there was no evidence that the
       area where Officer Caribou stood was clearly marked “with limited use and restricted access,”
       such that it could constitute an extension of defendant’s home. Cf. Burns, 2016 IL 118973,
       ¶ 39 (majority opinion). This similarly supports a conclusion that defendant had no privacy
       expectation in this particular area.
¶ 32       As to any claim of a physical intrusion, this was not a preplanned goal to gather
       incriminating evidence but the investigation of suspicious behavior in a crime-ridden
       neighborhood. And, no extra-sensory aids were used to observe defendant’s hand-off of what
       police later discovered was an unlicensed handgun. Thus, the police did not exceed the scope

           7
             Police may even lawfully enter the curtilage as long as they do not exceed the scope of being there.
       That is, a police officer not armed with a warrant may approach a home and knock because that is “no
       more than any private citizen might do.” (Internal quotation marks omitted.) Jardines, 569 U.S. at 8.
           8
             Defendant argues the trial court found the common area of this apartment building constituted
       “curtilage,” but we do not read such a factual finding in the record.

                                                       -9-
       of their license to be there. Accordingly, there was no fourth amendment search implicated
       simply by the police officers’ entry into the common area of this unlocked building. That is
       because a search implies prying into hidden places for concealed items, and it is not a search
       to observe that which is in open view. People v. Bridges, 123 Ill. App. 2d 58, 67 (1970).
       Likewise, there was no seizure of defendant’s person, since police had not then restrained
       defendant’s liberty. Again, it was defendant’s burden to show there was a search or seizure
       that violated his fourth amendment rights, and he did not fulfill that burden. See Brooks, 2017
       IL 121413, ¶ 24.

¶ 33                         Firearm Presence and Probable Cause to Arrest
¶ 34       Turning to the next stage of the encounter, just after the door closed behind Officer
       Caribou, both defendant and Turner looked in his direction. Defendant handed Turner a
       firearm, then they fled upstairs to the second floor. Officer Caribou, who wore a vest bearing
       his star number, name, and the word “police,” testified that he “probably” said “police freeze.”
       Defendant went into an apartment unit on the second floor and closed the door behind him.
       Turner, who was locked out, threw the handgun on the second-stair landing.
¶ 35       The State argues there was criminal activity afoot inside the apartment building, while
       defendant denies this claim. Defendant argued below and, in response to the State’s appeal,
       now maintains that the police lacked reasonable suspicion or probable cause to believe he was
       committing a crime because possession of a gun is not per se illegal and the police failed to
       ask defendant whether he had a valid FOID card or concealed carry license prior to arresting
       him.
¶ 36       In People v. Aguilar, 2013 IL 112116, ¶ 21, our supreme court specifically held that the
       portion of the AUUW statute categorically banning use and possession of operable firearms
       for self-defense outside the home was unconstitutional. As such, by now it is well-established
       that “the second amendment right to keep and bear arms extends beyond the home,” although
       such a right is subject to meaningful regulation. See id. ¶¶ 20-22. Under that meaningful
       regulation, in order to possess a handgun, a person must carry a FOID card issued in his name
       by the state police. 430 ILCS 65/2 (West 2014); People v. Williams, 266 Ill. App. 3d 752, 759-
       60 (1994) (a person in possession of a firearm must have a FOID card on his person because
       mere ownership of a FOID card by a person in possession of a firearm is insufficient to comply
       with the statute). Handguns cannot be transferred to another person unless that person
       “displays” a currently valid FOID card. 430 ILCS 65/3 (West 2014). A person desiring to
       transfer his firearm must first contact the state police to verify that the transferee has a valid
       FOID card. Id.
¶ 37       In addition, the Concealed Carry Act permits an individual to carry a concealed firearm on
       his person provided he has a valid FOID card. 430 ILCS 66/10, 25 (West 2014). A
       “ ‘[c]oncealed firearm’ ” means “a loaded or unloaded handgun carried on or about a person
       completely or mostly concealed from view of the public.” (Emphasis added.) Id. § 5. As a result,
       the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns
       in view of the public. A person with a concealed firearm must at all times possess his concealed
       carry license, unless he is on his own land or in his abode or legal dwelling (i.e., home) or
       acting as an invitee on another person’s land or in his home. Id.§ 10(g); see also Black’s Law
       Dictionary (10th ed. 2014) (defining “abode” as a “home; a place of residence” and defining
       “dwelling-house” as “a residence or abode”). The parties have not cited, nor has our research

                                                   - 10 -
       revealed, an Illinois case demonstrating that the common area of a multiunit apartment building
       constitutes “land,” “abode,” or a “legal dwelling,” within the meaning of the Concealed Carry
       Act. See People v. McClure, 218 Ill. 2d 375, 382 (2006) (to effect the legislature’s intent, courts
       should interpret the language of a statute according to its plain and ordinary meaning). 9 Thus,
       a person must possess his concealed carry license while in the common area of a multiunit
       apartment building, assuming concealed carry is permitted on that private property. See 430
       ILCS 66/65 (West 2014).
¶ 38       In addition to defendant’s aforementioned flight, here, defendant’s actions on seeing police
       of handing his gun to another person in the common area of an apartment building, which was
       not his land or home, and then fleeing 10 the scene, in totality, are facts that gave police
       probable cause to believe at the very least that defendant illegally possessed the gun. See
       People v. Grant, 2013 IL 112734, ¶ 11 (noting probable cause to arrest exists when the totality
       of the facts and circumstances known to the officer at the time are such that a reasonably
       cautious person would believe that the suspect is committing or has committed a crime); see
       also Williams, 266 Ill. App. 3d at 760 (the trier of fact could infer that the defendant who ran
       from police and threw his gun into the garbage did not have a FOID card while fleeing from
       police). The facts indicated a probability that defendant did not have the necessary gun licenses,
       that he had violated the FOID Card Act and the Concealed Carry Act with an illegal transfer
       to another individual, and that he had violated the Concealed Carry Act by exposing his gun in
       a semi-public place. See People v. Wear, 229 Ill. 2d 545, 564 (2008). That Officer Caribou had
       made multiple arrests for narcotics, gangs, and drugs in this neighborhood and was patrolling
       due to the activities of rival gangs at the time of this incident added to the totality of the
       circumstances justifying probable cause that defendant illegally possessed a firearm. See
       People v. Rainey, 302 Ill. App. 3d 1011, 1013 (1999) (noting, for probable cause, the totality
       of the circumstances known to the officer at the time of the arrest includes the officer’s factual
       knowledge and his prior law enforcement experience).
¶ 39       Thus, the existence of a possible innocent explanation, like defendant’s possession of the
       required gun licenses, did not necessarily negate probable cause. See People v. Geier, 407 Ill.
       App. 3d 553, 557 (2011). Likewise, the possibility that the owners of this residential apartment
       complex condoned concealed carry on their property did not lessen the probability that
       defendant did not in fact have the authority to possess a gun in the first place. 11 We note that

           9
             We decline defendant’s invitation to characterize the common area of an apartment building as a
       “private residence,” where it does not constitute the place where someone actually dwells or maintains
       his abode. See Black’s Law Dictionary (10th ed. 2014) (defining “residence” as the “place where one
       actually lives” or a “house or other fixed abode”); see also 720 ILCS 5/19-4(a-5) (West 2014) (noting,
       for purposes of proving criminal trespass to a residence, the term “residence” does not include common
       recreational areas or lobbies in a multiunit residential building or complex).
            10
               Section 10(h) of the Concealed Carry Act (430 ILCS 66/10(h) (West 2014)) provides that if an
       officer initiates an investigative stop of an individual, the officer may request his concealed carry
       license, and the individual must then disclose he is in possession of a concealed firearm. On the officer’s
       request, the individual must present the license. Id. Here, as stated, there was no stop because defendant
       was fleeing the scene the entire time. That, too, is a fact adding to probable cause to believe that
       defendant was not in possession of the proper gun licenses.
            11
               Defendant notes that section 65(a-10) of the Concealed Carry Act (430 ILCS 66/65(a-10) (West
       2014)) states that an owner of private real property “of any type may prohibit the carrying of concealed

                                                       - 11 -
       to the extent the trial court found the gun continued to be “partially concealed” when defendant
       handed it to Turner, such a finding has no basis in the record and is an unreasonable inference
       from Officer Caribou’s testimony and, thus, is against the manifest weight of the evidence.
¶ 40       We wish to emphasize that under the current legal landscape, police cannot simply assume
       a person who possesses a firearm outside the home is involved in criminal activity. Likewise,
       they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant
       pocket of a person on a public street, alone as probable cause to arrest an individual for illegal
       possession without first identifying whether the individual has the necessary licenses. We thus
       caution against an “arrest first, determine licensure later” method of police patrol. However,
       as set forth above, mere gun possession was not the scenario that presented itself to police in
       this case. The totality of the circumstances suggested criminal activity.

¶ 41                              Abandonment of the Firearm and Arrest
¶ 42        Regardless, given the sequence of events in this case, we agree with the State that defendant
       had abandoned his weapon before police even collected the gun and arrested defendant.
       Notably, abandoned property is not subject to fourth amendment protection since no one can
       have a reasonable expectation of privacy in an abandoned item. Pitman, 211 Ill. 2d at 519-20;
       see also Abel v. United States, 362 U.S. 217, 241 (1960) (noting there is nothing unlawful in
       the government’s appropriation of abandoned property). As such, abandoned property may be
       searched and seized without probable cause. People v. Sutherland, 223 Ill. 2d 187, 230 (2006).
       For abandonment, the State must demonstrate by a preponderance of the evidence that the
       defendant’s voluntary words or conduct would lead a reasonable person in the search officer’s
       position to believe that the defendant relinquished his property interest in the item searched or
       seized. Pitman, 211 Ill. 2d at 520. As this is an objective test, it matters not if the defendant
       desires to later reclaim the item. Id. What matters is the external manifestations of the
       defendant’s intent as judged by a reasonable person who possesses the same knowledge
       available to the police. Id. “ ‘We look at the totality of the circumstances, but pay particular
       attention to explicit denials of ownership and to any physical relinquishment of the property.’ ”
       Id. (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)).
¶ 43        Here, contrary to defendant’s suggestion, defendant did not thoughtfully hand his gun to
       Turner for safekeeping with strict directions or indicate that he would later reclaim the gun.
       Cf. Basinski, 226 F.3d at 837-38 (noting where the criminal entrusted his locked briefcase
       containing incriminating evidence to his lifelong friend to hide it on the friend’s remote private
       property in a secure state and to subsequently destroy the briefcase, the criminal did not intend
       to abandon the briefcase). Rather, this is the quintessential abandoned property case,
       characterized by “a fleeing defendant who relinquishes an object *** because discarding the
       item might make it easier for him to later claim that he never possessed it.” Id. at 837. In this


       firearms” on his property but must post the sign conspicuously at the entrance. Under section 65(a-10),
       this requirement does not apply to a “private residence.” Id. Defendant argues the absence of any
       evidence indicating such a sign existed in this case, by default, meant that police had to assume carrying
       a concealed firearm in this apartment complex was permissible and therefore defendant had the proper
       license. As set forth above, we reject defendant’s red-herring argument. Defendant also relies
       extensively on People v. Horton, but that case has been vacated with directions by the supreme court.
       People v. Horton, 2017 IL App (1st) 142019, vacated, No. 122461 (Ill. Nov. 22, 2017).

                                                      - 12 -
       case, defendant physically relinquished his property to Turner, while knowing police were in
       hot pursuit, and then shut Turner out of defendant’s purported apartment unit. Defendant thus
       exhibited he did not wish to be caught in possession of the gun. Turner then discarded the gun
       in an area where anyone could have retrieved it. The total circumstances indicate a reasonable
       person in Officer Caribou’s position would believe that defendant had relinquished his
       possessory interest in the gun that police later seized. It was more likely true than not that
       defendant abandoned the handgun.
¶ 44       Because no search or seizure occurs when police take hold of an abandoned item, the
       validity of the arrest is irrelevant. See People v. Hoskins, 101 Ill. 2d 209, 220 (1984); People
       v. Grant, 38 Ill. App. 3d 62, 68 (1976); Bridges, 123 Ill. App. 2d at 67. That is, the evidence
       here was obtained prior to and independent of defendant’s arrest, and as such, the arguments
       of counsel as to the legality of the arrest merit no further consideration. See Bridges, 123 Ill.
       App. 2d at 67. Accordingly, the trial court’s conclusion that the gun was the “fruit of the
       poisonous tree” was demonstrably incorrect. See Johnson, 237 Ill. 2d at 92 (in order for
       evidence obtained from an illegal arrest to be excluded, there must be some causal nexus
       between the illegal police activity and the disputed evidence). In truth, as the State concurred
       at oral argument, this scenario is more akin to a situation where there is no fruit from an
       “unplanted tree.” See Burns, 2016 IL 118973, ¶ 47 (describing the fruit-of-the-poisonous-tree
       metaphor).
¶ 45       Regardless, where the offense can be said to have been committed in the presence of an
       officer, it has generally been held that the officer may enter the premises without a warrant for
       the purpose of making a warrantless arrest. People v. Eichelberger, 91 Ill. 2d 359, 369 (1982);
       see also Wear, 229 Ill. 2d at 571 (noting an officer’s warrantless nonconsensual entry into the
       defendant’s residence was excused under doctrine of hot pursuit, where at the very least the
       officer had probable cause to arrest at the threshold of the defendant’s home). Given that
       defendant’s actions provided police with probable cause to believe he was committing a felony
       in their presence, the officers rightfully entered defendant’s alleged apartment unit to make a
       warrantless arrest, even assuming the apartment unit was defendant’s and his “girlfriend” did
       not lawfully consent to the police entering. See Wear, 229 Ill. 2d at 571.
¶ 46       Based on the foregoing, defendant abandoned his handgun without implicating a fourth
       amendment search or seizure. Alternatively, police acquired probable cause to sustain
       defendant’s arrest in the apartment unit after observing him hand off the gun and flee. As noted
       throughout this case, it was defendant’s initial burden to show a prima facie case of illegal
       search and seizure, and he failed. See Martin, 2017 IL App (1st) 143255, ¶ 18; see also People
       v. Relwani, 2019 IL 123385, ¶ 18 (noting that a prima facie case is “ ‘[a] party’s production of
       enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor’ ”
       (quoting Black’s Law Dictionary 1310 (9th ed. 2009))).

¶ 47                   Defendant’s Expectation of Privacy in the Apartment Unit
¶ 48       Finally, even assuming police conducted a search or seizure in violation of defendant’s
       fourth amendment rights, defendant would fare no better because he failed to establish a
       reasonable expectation of privacy in the actual apartment unit and, thus, in the building itself.
       The fourth amendment’s constitutional safeguards are personal protections that may not be
       vicariously asserted and, thus, not every aggrieved defendant can seek to exclude evidence
       allegedly obtained in violation of the fourth amendment. People v. Ervin, 269 Ill. App. 3d 141,

                                                   - 13 -
       146 (1994). Again, the defendant bears the burden of establishing that he held a reasonable
       expectation of privacy, i.e., one that society is prepared to recognize as reasonable, in the place
       searched or the property seized. Id. Factors for determining a reasonable expectation of privacy
       include whether the defendant was legitimately present in the area searched, his possessory
       interest in the area or property seized, his prior use of the area searched or property seized, his
       ability to control or exclude others’ use of the property, and his subjective expectation of
       privacy. Pitman, 211 Ill. 2d at 520-21.
¶ 49       Here, defense counsel noted defendant had entered the apartment unit, locking the door
       behind him, and the woman inside (who was his supposed girlfriend) eventually reopened the
       door for the police. Defense counsel thus implicitly argued that defendant maintained a
       possessory interest in the apartment unit and the ability to control or exclude others from the
       property. The trial court credited this argument as establishing defendant’s reasonable
       expectation of privacy.
¶ 50       The State now argues this evidence was insufficient, especially where it showed defendant
       did not reside at that address and his relationship with the woman who answered the door was
       merely assumed. Defendant counters that, with the trial court’s finding, the burden of
       production then shifted to the State. He argues the State, however, failed to rebut the evidence
       and is now “trying to game the system” and engaging in “prejudicial sandbagging” by raising
       the matter on appeal. We disagree.
¶ 51       In addition to the above factors, it is well-established that while an overnight guest in a
       home may claim the protection of the fourth amendment, one who is merely present with the
       consent of the householder may not. Minnesota v. Carter, 525 U.S. 83, 90 (1998); People v.
       Williams, 186 Ill. App. 3d 467, 472 (1989) (“Merely because the defendant is occasionally on
       the premises as a guest or invitee, and is on the premises at the time of the allegedly illegal
       search, does not confer standing.”). In Ervin, for example, this court held that the defendant’s
       weekly presence as a guest in his ex-wife’s home was insufficient to establish a reasonable
       expectation of privacy, where he did not reside there, was not even a daily visitor, did not store
       clothing there, and did not spend nights there. Ervin, 269 Ill. App. 3d 141. This was in spite of
       him listing her address on his driver’s license and other identification. See also People v.
       Parker, 312 Ill. App. 3d 607, 613 (2000) (noting, in Illinois, the storage of personal effects and
       other indicia of residence demonstrate an expectation of privacy in non-overnight guests);
       Williams, 186 Ill. App. 3d at 471 (concluding the defendant had no reasonable expectation of
       privacy in his girlfriend’s apartment where he did not live there, spent only one night a week
       there, did not take meals or keep clothes there, and had his mailing address elsewhere).
¶ 52       The evidence in this case established defendant’s presence in and access to the apartment
       unit, but it did not establish whether the apartment was itself locked before he entered, how
       often he was in the apartment, whether he planned to stay there for more than a brief period of
       time, or whether he kept any possessions there. The evidence therefore was insufficient to
       demonstrate he had a reasonable expectation of privacy in the actual apartment unit and in the
       apartment building itself. To the extent the trial court found otherwise, its finding was against
       the manifest weight of the evidence. The record also reveals that the State argued in its motion
       for a directed finding the issue of defendant’s privacy interest in the unit and the matter was
       not waived. In any event, this particular issue does not warrant remand for a continuation of
       the suppression hearing because, as stated, there was no fourth amendment search or seizure


                                                   - 14 -
       implicated. Thus, defendant cannot ultimately succeed on a motion to suppress.

¶ 53                                        CONCLUSION
¶ 54      For the reasons stated, we reverse the judgment of the circuit court granting defendant’s
       motion to quash his arrest and suppress evidence. We remand the case for further proceedings
       consistent with this opinion.

¶ 55      Reversed and remanded.




                                                - 15 -
