People v. Almond ( 2015 )

2015 IL 113817
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 113817)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ANTONIO
ALMOND, Appellee.
Opinion filed February 20, 2015.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the
judgment and opinion.
Chief Justice Garman concurred in part and dissented in part, with opinion.
OPINION
¶1 Following a bench trial in the circuit court of Cook County, defendant was
convicted of multiple firearm offense counts arising from his possession of a single
loaded handgun while he was a felon. This appeal requires us to decide whether
those convictions were authorized under the applicable criminal statutory
provisions and the one-act, one-crime rule.
¶2 A majority of the appellate court answered that question in the negative and
concluded that defendant could receive only one conviction “based on the same
physical act of possessing one loaded firearm.” The court also rejected defendant’s
fourth amendment challenge to his arrest and recovery of the loaded firearm. 2011
IL App (1st) 093587-U.
¶3 Before this court, the State seeks reversal of the appellate court’s judgment,
arguing that multiple separate convictions for firearms offenses based on the
possession of a single loaded firearm by a felon are statutorily authorized.
Defendant filed a cross-appeal, renewing his fourth amendment challenge to his
arrest and the recovered evidence.
¶4 For the reasons that follow, we reverse in part and affirm in part the appellate
court’s judgment.
¶5 I. BACKGROUND
¶6 In the early afternoon of October 30, 2008, police officers arrested defendant,
Antonio Almond, at a liquor store located at 330 East Pershing Road in Chicago.
Officers recovered a loaded firearm from defendant. Ultimately, defendant, who
had prior felony convictions, was charged with multiple firearm offenses relating to
possession of a firearm by a felon.
¶7 Prior to trial, defendant filed a motion to quash arrest and suppress evidence. At
the hearing on his motion, defendant testified that at about 1 p.m. on the day of his
arrest he entered the liquor store to purchase alcohol. Shortly thereafter, two police
officers entered the store. Although they were dressed in regular plain clothes,
defendant recognized them as police officers because their badges were visible.
According to defendant, the officers immediately told him to “get on the gate,”
referring to the security gate used by store employees. The officers did not show
defendant an arrest or search warrant. Defendant testified that after he placed his
hands on the gate, one of the officers frisked him and grabbed his waist. During that
encounter, the officer recovered a firearm from defendant’s waistband. At the
hearing, defendant conceded that inside the store he possessed a handgun loaded
with six live rounds of ammunition.
¶8 Defendant denied that the officer asked him what he was doing inside the store.
Defendant also denied that the officer asked him, prior to the frisk, whether he
possessed any contraband. Defendant further denied that he ever told officers that
he possessed a firearm. Defendant specifically denied saying “I just got to let you
know I got a gun on me.” Defendant explained that he would not tell a police
officer that information because he knew “it’s wrong to have a gun.”
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¶9 On cross-examination, defendant testified that the officers did not initially
identify themselves as police officers, did not tell him to stop, and did not produce
their weapons until after they discovered he was armed. The officers arrested
defendant after they recovered the gun from him.
¶ 10 The trial court found that defendant met his burden on the motion. The State
then presented evidence of defendant’s prior felony convictions for drug offenses.
The State also presented the testimony of Chicago police officer James Davis.
Officer Davis and his partner, Officer Carl Weatherspoon, were in their marked
squad car when dispatch informed them that an anonymous individual had reported
that several men were selling illegal drugs both outside and inside a liquor store at
330 East Pershing Road. The officers drove to that location and saw defendant and
four other men outside the liquor store.
¶ 11 The officers parked their squad car and exited their vehicle. After their arrival,
the group of men outside the store, including defendant, dispersed. Defendant and
two other men went inside the liquor store. Another man walked away on Pershing
Road, and a second man walked away through an alley.
¶ 12 Officer Davis and his partner went inside the store and approached defendant
and the two other men. Officer Davis spoke to defendant, while his partner spoke
with the other men. Officer Davis asked defendant what he was doing inside the
store and whether defendant was in possession of any narcotics or weapons.
Defendant replied, “I just got to let you know I got a gun on me.” Upon receiving
this information, Officer Davis frisked defendant and recovered a gun from the
waistband of defendant’s pants.
¶ 13 On cross-examination, Officer Davis explained that he did not know the
identity of the informant and did not know whether the informant was reliable. The
informant described the individuals selling illegal drugs as “several male blacks,”
but did not otherwise provide specific identifying information or physical
descriptions. Officer Davis stated defendant was not acting in a suspicious manner
when the officers approached him. Officer Davis indicated in his police report that
he approached defendant to conduct a “field interview.”
¶ 14 In rebuttal, defendant called Officer Carl Weatherspoon. Officer Weatherspoon
heard Officer Davis talking to defendant, but he did not know what was said
because Officer Weatherspoon was focused on his own conversation with the other
two men.
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¶ 15 In closing statements, defendant relied heavily on the United States Supreme
Court’s decision in Florida v. J.L., 529 U.S. 266 (2000), holding that an
anonymous tip lacking any indicia of reliability does not justify a Terry stop and
frisk. Defendant argued that the anonymous tip here was not corroborated and had
no indication of reliability and, therefore, did not provide reasonable suspicion to
support Officer Davis’s conduct under Terry. Defendant further argued that Officer
Davis’s account of the incident “strain[ed] credibility” because it was unlikely that
an individual who illegally possessed a firearm would freely volunteer that
information to a police officer.
¶ 16 The State argued that Florida v. J.L. was factually distinguishable because in
that case the police officer, acting on an anonymous tip that a man at a bus stop
wearing a plaid shirt was in possession of a gun, stopped the alleged offender,
frisked him, and recovered a gun. Here, in contrast, Officer Davis credibly testified
that he approached the defendant for a field interview after arriving at the liquor
store to investigate the anonymous tip about illegal drug sales at that store. Officer
Davis asked defendant general questions about why he was at the store and whether
he possessed any contraband. The State argued that this interaction did not
constitute a Terry stop. Once defendant told officers that he was in possession of a
firearm, the officers were justified in recovering that firearm. The recovered
firearm also provided probable cause to arrest defendant. Following arguments, and
with defendant’s agreement, the court continued the matter to consider the
application of Florida v. J.L.
¶ 17 Ultimately, the trial court denied defendant’s motion to quash arrest and
suppress evidence. The court concluded that Florida v. J.L. was distinguishable
because Officer Davis testified that defendant voluntarily told him that he was in
possession of a firearm before Officer Davis recovered the firearm. The court
further explained that it did not believe the encounter between Officer Davis and
defendant constituted a Terry stop, unlike in Florida v. J.L.
¶ 18 Thus, in the trial court’s opinion, the issue was “really more a matter of
credibility rather than a matter of law” because the court was presented with two
conflicting accounts of the incident. Assessing the credibility of the witnesses, the
court noted that defendant was a convicted felon. The court then found that the
officers’ testimony was clear and credible and was not substantively impeached.
Consequently, the court accepted the State’s version of the incident and concluded
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that the officers acted properly after defendant indicated he was in possession of a
firearm.
¶ 19 Defendant filed a motion to reconsider, and the trial court denied that motion.
The matter then proceeded to a bench trial.
¶ 20 At defendant’s bench trial, Officer Davis testified consistently with his
testimony at the pretrial suppression hearing. Officer Davis did, however, elaborate
on his interaction with defendant inside the store. Officer Davis explained that
defendant and the other two men were located next to a wall at the back of the store.
Officer Davis denied that defendant and the other men were not free to leave when
he entered the store. Officer Davis further denied that he intended to search the men
when he approached them.
¶ 21 After approaching defendant and the other two men, Officer Davis asked them
what they were doing inside the store, and they replied that they were going to buy
chips. Officer Davis next asked them to explain why they were at the back of the
store instead of near the register if they wanted to buy chips. Neither defendant nor
the other two men offered any response. Officer Davis then asked them whether
they possessed any weapons or narcotics. Only defendant replied, stating that “I
just got to let you know I got a gun on me.” Defendant reached toward his
waistband, but Officer Davis instructed defendant that the officer would retrieve
the weapon. Officer Davis recovered an uncased and loaded .38-caliber firearm
from defendant’s front waistband.
¶ 22 To support the prior felony convictions alleged in the indictment, the State
introduced certified copies of defendant’s 2008 Class 4 felony conviction for
possession of a controlled substance and his 2004 and 2003 Class 2 felony
convictions for manufacture or delivery of a controlled substance.
¶ 23 The State then rested its case. Defendant did not present any evidence.
Following closing arguments, the trial court found defendant guilty on all counts.
The court sentenced defendant to the statutory minimum of six years’
imprisonment for the most serious offense, armed habitual criminal, and to three
years’ imprisonment on the remaining counts, to be served concurrently.
¶ 24 On direct appeal, a divided appellate court affirmed in part and reversed in part
the circuit court’s judgment. 2011 IL App (1st) 093587-U. In relevant part, the
court rejected defendant’s fourth amendment challenge to his arrest and the
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evidence, albeit for different reasons. The majority reasoned that Officer Davis
engaged in a proper Terry stop based on reasonable suspicion. 2011 IL App (1st)
093587-U, ¶ 70. The concurring justice concluded that the incident between
Officer Davis and defendant was a consensual encounter that did not implicate the
fourth amendment. 2011 IL App (1st) 093587-U, ¶ 134 (Garcia, J., concurring in
part and dissenting in part).
¶ 25 The court disagreed, however, on whether defendant could receive separate
convictions based on the simultaneous possession of a firearm and ammunition in a
single loaded firearm. 1 Notably, the parties agreed that defendant could be
convicted of being an armed habitual criminal based on his possession of a firearm
(Count I) and unlawful use of weapons (UUW) by a felon based on his possession
of firearm ammunition (Count III). 2011 IL App (1st) 093587-U, ¶¶ 74-76. The
majority of the court, however, refused to accept the parties’ agreement. 2011 IL
App (1st) 093587-U, ¶ 74. Applying one-act, one-crime principles and construing
the applicable statutory language, the majority concluded that the statute was
ambiguous and found that only one offense is permitted for a single loaded firearm.
2011 IL App (1st) 093587-U, ¶¶ 77-86. Accordingly, the majority affirmed
defendant’s conviction on the most serious offense, armed habitual criminal, but
vacated his conviction for UUW by a felon. 2011 IL App (1st) 093587-U, ¶ 86.
¶ 26 Justice Garcia dissented on the latter portion of the court’s opinion, arguing that
the majority failed to consider that its construction of the statute and application of
the one-act, one-crime rule had been rejected in People v. Anthony, 2011 IL App
(1st) 091528-B. 2 Specifically, Anthony held that separate convictions for a single
loaded firearm were permissible. Consequently, Justice Garcia argued that
defendant’s conviction for armed habitual criminal based on possession of a
firearm and his conviction for UUW by a felon based on possession of firearm
1
Although defendant was initially charged with, and ultimately convicted of, seven separate
counts of firearm offenses, only two, Count I (armed habitual criminal based on possession of a
firearm) and Count III (UUW by a felon based on possession of ammunition), are at issue in this
case. In the appellate court, the State conceded that the remaining charges and convictions, all based
on defendant’s possession of a firearm, should be vacated. 2011 IL App (1st) 093587-U, ¶¶ 73-76.
Consequently, the parties’ respective arguments before this court are limited to these two charges.
Our analysis here, therefore, is similarly limited to these two charges.
2
Justice Garcia observed that the author of the majority’s opinion dissented in Anthony.
Compare 2011 IL App (1st) 093587-U, with People v. Anthony, 2011 IL App (1st) 091528-B
(Gordon, P.J., dissenting).
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ammunition were proper and should be affirmed. 2011 IL App (1st) 093587-U,
¶ 135 (Garcia, J., concurring in part and dissenting in part).
¶ 27 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
July 1, 2013).
¶ 28 II. ANALYSIS
¶ 29 A. Statutory Construction of UUW by a Felon
¶ 30 On appeal, the State argues that the plain and unambiguous language of the
UUW by a felon statute (720 ILCS 5/24-1.1 (West 2008)) authorizes multiple
convictions for firearms offenses when a felon possesses a loaded firearm, i.e., a
conviction for possession of the firearm and a separate conviction for the
simultaneous possession of ammunition inside that firearm. More specifically, the
State relies on section 24-1.1(e) of that statute, providing that “[t]he possession of
each firearm or firearm ammunition in violation of this Section constitutes a single
and separate violation.” 720 ILCS 5/24-1.1(e) (West 2008). The State contends that
this language renders the possession of a firearm an act distinct from possession of
ammunition, thereby permitting separate and multiple convictions for the
simultaneous possession of a firearm and ammunition by a felon.
¶ 31 The State also notes that this particular statutory language was added by
amendment to the UUW by a felon statute following this court’s decision in People
v. Carter, 213 Ill. 2d 295 (2004). In Carter, this court found that the preamended
version of the statute (720 ILCS 5/24-1.1 (West 1996)) was ambiguous on the issue
of whether multiple convictions were permitted for the simultaneous possession of
a firearm and ammunition and should, therefore, be construed in favor of the
accused. Carter, 213 Ill. 2d at 302. We also relied on our previous consistent
holdings that, when a statute is ambiguous, simultaneous possession could not
support multiple convictions in the absence of a contrary provision. Carter, 213 Ill.
2d at 302-03. Accordingly, we held that under the preamended version of the UUW
by a felon statute the simultaneous possession of a firearm and ammunition
constituted a single offense that could support only a single conviction. Carter, 213
Ill. 2d at 303-04.
¶ 32 Defendant responds that he can be convicted of only a single criminal offense
based on his possession of a loaded firearm because his conduct constituted a single
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act under the one-act, one-crime rule of People v. King, 66 Ill. 2d 551 (1977).
Defendant contends that the legislative amendment to section 24-1.1(e) following
our decision in Carter did not abrogate the one-act, one-crime rule for multiple
convictions of firearm offenses based on the possession of a single loaded firearm.
Defendant argues that while the amendment “clarifies that the separate possession
of multiple firearms or firearm ammunition are distinct offenses,” it does not
address the precise issue here—whether multiple convictions can be supported by
the possession of a single loaded firearm. Defendant further argues that the statute
is ambiguous because it does not distinguish between loaded and unloaded firearms
or ammunition possessed in a loaded firearm.
¶ 33 We must first determine whether the UUW by a felon statute authorizes
separate offenses to be charged for the simultaneous possession of a firearm and
ammunition, as occurs when a felon possesses a loaded firearm. As we explained in
Carter when considering the same question under the preamended version of the
statute, “one-act, one-crime principles apply only if the statute is construed as
permitting multiple convictions for simultaneous possession.” Carter, 213 Ill. 2d at
301. We now address that issue.
¶ 34 We review de novo the question of whether the statute authorizes separate
convictions for the simultaneous possession of a firearm and ammunition because it
presents a question of statutory interpretation. People v. Elliott, 2014 IL 115308,
¶ 11. Our primary goal when construing a statute is to give effect to the legislature’s
intent, best indicated by giving the statutory language its plain and ordinary
meaning. Elliott, 2014 IL 115308, ¶ 11. A reviewing court may also consider the
reason for the law and the problems intended to be remedied. People v. Perez, 2014
IL 115927, ¶ 9.
¶ 35 The UUW by a felon statute, in relevant part, provides:
“(a) It is unlawful for a person to knowingly possess on or about his person
or on his land or in his abode or fixed place of business any weapon prohibited
under Section 24-1 of this Act or any firearm or any firearm ammunition if the
person has been convicted of a felony under the laws of this State or any other
jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2008).
The statute, as amended, further provides that “[t]he possession of each firearm or
firearm ammunition in violation of this Section constitutes a single and separate
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violation.” 720 ILCS 5/24-1.1(e) (West 2008); see also Pub. Act 94-284, § 10 (eff.
July 21, 2005) (amending the UUW by a felon statute with this language).
¶ 36 Under the plain meaning of this statutory language, the UUW by a felon statute
unambiguously authorizes separate convictions when a felon possesses a loaded
firearm, a conviction based on the firearm and a conviction based on the
ammunition inside that firearm. The language not only criminalizes the possession
of any firearm or any firearm ammunition by a felon, but also clarifies that the
possession of each firearm or firearm ammunition by a felon constitutes a single
and separate violation.
¶ 37 In our view, construing the statute to authorize separate convictions for the
simultaneous possession of a firearm and ammunition in a loaded firearm is further
supported by the legislature’s amendment of the UUW by a felon statute
subsequent to our decision in Carter. See Perez, 2014 IL 115927, ¶ 9 (when
construing a statute, a reviewing court may consider the reason for the law and the
problems intended to be remedied). In Carter, we concluded that, in the absence of
a statutory provision expressly authorizing separate convictions for simultaneous
possession, the use of the term “any” in the statute was ambiguous and did not
adequately define the allowable unit of prosecution. Carter, 213 Ill. 2d at 302.
Accordingly, we held that the preamended version of the UUW by a felon statute
did not permit separate convictions for simultaneous possession. Carter, 213 Ill. 2d
at 304.
¶ 38 In an apparent response to Carter, the legislature amended the UUW by a felon
statute to provide that “[t]he possession of each firearm or firearm ammunition in
violation of this Section constitutes a single and separate violation.” 720 ILCS
5/24-1.1(e) (West 2008). Significantly, the legislative amendment to the UUW by a
felon statute here tracks almost exactly the statutory language we identified in
Carter as providing evidence of legislative intent to authorize separate convictions
based on simultaneous violations of a single criminal statute. See Carter, 213 Ill. 2d
at 303 (“ ‘[a] violation of this Act with respect to each of the controlled substances
listed herein constitutes a single and separate violation of this Act’ ”) (quoting with
approval 720 ILCS 570/402 (West 2002)); see also Pub. Act 94-284, § 10 (eff. July
21, 2005) (amending the UUW by a felon statute to provide that “[t]he possession
of each firearm or firearm ammunition in violation of this Section constitutes a
single and separate violation”).
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¶ 39 Essentially, the legislature adopted the statutory language that Carter
recognized would authorize separate convictions for simultaneous possession of
contraband. Under these circumstances, the legislative intent to permit separate
convictions for simultaneous possession of a firearm and ammunition under the
UUW by a felon statute could not be clearer. As this court has previously
explained, “[i]t is presumed that every amendment to a statute is made for some
purpose, and effect must be given to the amended law in a manner consistent with
the amendment.” People v. Youngbey, 82 Ill. 2d 556, 563 (1980).
¶ 40 We also note that our appellate court has similarly construed the amended
UUW by a felon statute to authorize separate convictions for the simultaneous
possession of a firearm and ammunition in a loaded firearm. People v. Anthony,
2011 IL App (1st) 091528-B, ¶ 9; see also People v. Howard, 2014 IL App (1st)
122958 (following Anthony). Both appellate court decisions also share our
assessment of the legislature’s response to Carter. See Anthony, 2011 IL App (1st)
091528-B, ¶ 17 (recognizing that the legislature adopted the language this court
identified in Carter as necessary to authorize separate convictions); Howard, 2014
IL App (1st) 122958, ¶ 18 (observing that “[s]ection 24-1.1(e) was amended in
2005, in response to Carter, in order to alleviate an ambiguity in the statute”).
¶ 41 Nonetheless, defendant asserts that the statute remains ambiguous because it
does not distinguish between loaded and unloaded firearms, as the appellate court
majority here concluded. 2011 IL App (1st) 093587-U, ¶¶ 82-86. We disagree.
¶ 42 Although the statute does not expressly distinguish between loaded and
unloaded firearms, the lack of such a distinction does not render the statute
ambiguous. Instead, the statutory language clearly prohibits a felon’s possession of
any firearm or firearm ammunition, and it renders each possession of either item a
single and separate violation. Under the plain meaning of that unambiguous
language, it is irrelevant whether the firearm is loaded or unloaded, or whether the
ammunition is possessed within a loaded firearm or not. Contrary to defendant’s
implication, the statutory language does not exclude, or otherwise exempt,
ammunition simultaneously possessed by a felon in a loaded firearm. We may not
depart from the plain statutory language by reading into the statute exceptions,
limitations, or conditions not expressed by the legislature. People v. Lewis, 223 Ill.
2d 393, 402 (2006). Effectively, then, the UUW by a felon statute prohibits felons
from possessing (1) a loaded firearm; (2) an unloaded firearm; or (3) ammunition,
whether loaded in a firearm or not.
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¶ 43 Accordingly, we hold that the UUW by a felon statute authorizes separate
convictions for the simultaneous possession of a firearm and ammunition in a
single loaded firearm. As noted above, the plain language of the statute prohibits
felons from possessing any firearm or firearm ammunition and unambiguously
treats each possession as a separation violation of the statute. 720 ILCS 5/24-1.1(a),
(e) (West 2008).
¶ 44 B. One-Act, One-Crime Rule
¶ 45 Determining that the UUW by a felon statute authorizes separate convictions
for simultaneous possession, however, does not end our inquiry. The parties also
disagree on whether defendant’s conviction for armed habitual criminal based on
his possession of a firearm and his conviction for UUW by a felon based on his
possession of ammunition violate the one-act, one-crime rule from People v. King,
66 Ill. 2d 551 (1977). The State argues that the one-act, one-crime rule is not
implicated by defendant’s convictions because those convictions are based on two
separate acts—possession of a firearm and possession of ammunition, respectively.
In support of its position, the State observes that the two charging offenses
similarly identified defendant’s conduct as two distinct acts.
¶ 46 Defendant responds that his convictions violate the one-act, one-crime rule
because his possession of a loaded firearm constitutes a single physical act.
Defendant asserts that his possession of a firearm was not an act separate and
distinct from his simultaneous possession of the ammunition inside that firearm.
¶ 47 The parties’ respective arguments on the one-act, one-crime rule present a
question of law that we review de novo. People v. Robinson, 232 Ill. 2d 98, 105
(2008). Under that rule, a defendant may not be convicted of multiple offenses
based on the same physical act. King, 66 Ill. 2d at 566; People v. Miller, 238 Ill. 2d
161, 165 (2010). As we explained in King, however, “[m]ultiple convictions and
concurrent sentences should be permitted in all other cases where a defendant has
committed several acts, despite the interrelationship of those acts.” King, 66 Ill. 2d
at 566. For purposes of the rule, an “act” is defined as any overt or outward
manifestation that will support a separate conviction. King, 66 Ill. 2d at 566; People
v. Crespo, 203 Ill. 2d 335, 342 (2001).
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¶ 48 Applying those principles in this case, we agree with the State that defendant’s
separate convictions do not violate the one-act, one-crime rule. Defendant,
indisputably a previously convicted felon, possessed two separate and distinct
items of contraband, a firearm and firearm ammunition. Possession of either item
by a felon is an independent criminal offense. 720 ILCS 5/24-1.1(a) (West 2008).
Although defendant’s possession of those items was simultaneous, that factor alone
does not render his conduct a “single act” for purposes of the one-act, one-crime
rule. Instead, defendant committed two separate acts—possession of a firearm and
possession of firearm ammunition. To any extent that defendant’s acts were
interrelated because of their simultaneous nature, this court has explained that
“ ‘[a]s long as there are multiple acts as defined in King, their interrelationship does
not preclude multiple convictions.’ ” (Emphasis omitted.) People v. Rodriguez, 169
Ill. 2d 183, 189 (1996) (quoting People v. Myers, 85 Ill. 2d 281, 288 (1981)); see
also Miller, 238 Ill. 2d at 165 (detailing the one-act, one-crime doctrine and citing
King for the same proposition). Simply stated, the act of possession of a firearm is
materially different from the act of possession of firearm ammunition, even if both
items are possessed simultaneously.
¶ 49 Nonetheless, defendant argues that his possession of a loaded firearm
constitutes a single act for purposes of the rule. The fatal flaw in defendant’s
argument is that he was neither charged with, nor convicted of, possession of a
loaded firearm. Instead, defendant was charged with, and convicted of, being an
armed habitual criminal based on his possession of a firearm (Count I) and UUW
by a felon based on his possession of firearm ammunition (Count III). These
charges clearly illustrate the State’s intent to treat defendant’s conduct as separate
and multiple acts. See Crespo, 203 Ill. 2d at 345 (generally, to comply with King
and sustain multiple convictions, the charging instrument must indicate that the
State intends to treat the defendant’s conduct as separate and multiple acts).
¶ 50 Accordingly, we conclude that defendant’s possession of a firearm and his
possession of firearm ammunition, both occurring when he was a felon, are
separate acts that support his two convictions as charged by the State in Count I and
Count III. King, 66 Ill. 2d at 566. We therefore reject defendant’s challenge to those
convictions under the one-act, one-crime rule.
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¶ 51 C. Cross-Relief
¶ 52 Defendant seeks cross-relief, arguing that the trial court erred in denying his
motion to quash arrest and suppress evidence because Officer Davis effected a
Terry stop that was not supported by reasonable suspicion, in violation of the fourth
amendment. Citing Florida v. J.L., 529 U.S. 266, 271 (2000), defendant argues that
an anonymous informant’s unexplained and uncorroborated tip combined with the
flight of two men standing outside a store did not support a reasonable suspicion
that defendant was committing a crime. Defendant further argues that the incident
was not a consensual encounter because he was not free to leave and was not free to
terminate the “increasingly adversarial encounter with Officer Davis.” Defendant
contends that a reasonable, innocent person in the same situation would have
considered himself seized within the meaning of the fourth amendment.
¶ 53 The State responds that the trial court properly denied defendant’s motion to
quash arrest and suppress evidence. Initially, the State contends that defendant
forfeited his fourth amendment challenge to his arrest because he failed to raise the
issue in a posttrial motion and also forfeited plain-error review by not recognizing
his forfeiture in his request for cross-relief. Forfeiture aside, the State argues that
the underlying incident did not implicate the fourth amendment because it was a
consensual encounter between the officer and defendant and defendant voluntarily
confessed that he was in possession of a firearm. Alternatively, the State argues that
the officer conducted a proper Terry stop after defendant confessed to possessing a
firearm because that information provided the officer with reasonable suspicion for
the stop.
¶ 54 First, we reject the State’s argument on forfeiture. Ordinarily, to preserve an
issue for review a party must raise it at trial and in a written posttrial motion. People
v. Enoch, 122 Ill. 2d 176, 190 (1988). As defendant correctly notes, however,
constitutional issues that were previously raised at trial and could be raised later in
a postconviction petition are not subject to forfeiture on direct appeal under Enoch.
People v. Cregan, 2014 IL 113600, ¶ 16. In Cregan, we explained that when, as
here, a defendant fails to raise a constitutional issue in a posttrial motion but the
issue was raised at trial and could be raised in a postconviction petition “the
interests in judicial economy favor addressing the issue on direct appeal rather than
requiring defendant to raise it in a separate postconviction petition.” Cregan, 2014
IL 113600, ¶ 18. In accordance with those interests, we will review the merits of
defendant’s fourth amendment challenge in his cross-appeal.
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¶ 55 When reviewing the trial court’s ruling on a motion to quash arrest and suppress
evidence, we apply a two-part standard of review. People v. Grant, 2013 IL
112734, ¶ 12. We afford great deference to the trial court’s findings of fact and will
reverse those factual findings only if they are against the manifest weight of the
evidence. People v. Hackett, 2012 IL 111781, ¶ 18. We review de novo the trial
court’s ultimate legal ruling on whether the evidence should be suppressed.
Hackett, 2012 IL 111781, ¶ 18. In addition, we may consider evidence presented at
defendant’s trial and at the suppression hearing. People v. Richardson, 234 Ill. 2d
233, 252 (2009). We first consider the parties’ disagreement on whether the
underlying incident involved a consensual encounter.
¶ 56 Both the fourth amendment and the Illinois Constitution of 1970 guarantee the
right of individuals to be free from unreasonable searches and seizures. U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, § 6. It is settled, however, that not every
encounter between a police officer and a private citizen involves a seizure or
restraint of liberty that implicates the fourth amendment. People v. Luedemann,
222 Ill. 2d 530, 544 (2006). Indeed, a consensual encounter between a citizen and
an officer does not violate the fourth amendment because it does not involve
coercion or a detention. People v. McDonough, 239 Ill. 2d 260, 268 (2010) (citing
Luedemann, 222 Ill. 2d at 544-45).
¶ 57 As the United States Supreme Court has recognized when considering whether
a challenged incident was a consensual encounter, a person is seized within the
meaning of the fourth amendment “only when, by means of physical force or a
show of authority, his freedom of movement is restrained.” United States v.
Mendenhall, 446 U.S. 544, 553 (1980). In other words, a person has been seized
when, considering the totality of the circumstances, a reasonable person would
believe he is not free to leave. People v. Oliver, 236 Ill. 2d 448, 456 (2010).
Generally, the following Mendenhall factors indicate a seizure without the person
attempting to leave: (1) the threatening presence of several officers; (2) the display
of a weapon by an officer; (3) some physical touching of the person; or (4) using
language or tone of voice compelling the individual to comply with the officer’s
requests. Oliver, 236 Ill. 2d at 456 (citing Mendenhall, 446 U.S. at 554). While
these factors are not designed to be exhaustive, this court has recognized that the
absence of any Mendenhall factors “ ‘is highly instructive’ ” on the issue of
whether a seizure has occurred. Oliver, 236 Ill. 2d at 457 (quoting Luedemann, 222
Ill. 2d at 554.
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¶ 58 Here, none of the Mendenhall factors were present. Although there were two
officers involved in the underlying encounter, Officers Davis and Weatherspoon
were actually outnumbered by defendant and the other two men inside the store.
Moreover, both officers wore plain clothes, and neither displayed a weapon. The
officers did not physically touch defendant before the gun was recovered. Finally,
there was no evidence that either officer used language or tone of voice compelling
defendant to comply with the officer’s request. In fact, at the suppression hearing,
defendant testified that Officer Davis and Officer Weatherspoon did not initially
identify themselves as police officers and did not tell him to stop.
¶ 59 Defendant concedes that neither of the officers displayed a weapon or used
physical touching. Nevertheless, defendant contends that the officers created a
threatening presence when they arrived in a marked squad car. Defendant further
contends that Officer Davis’s language and actions demonstrated that compliance
with his request was compelled because he (1) “singled” defendant out from the
other men and followed defendant into the store; (2) “backed [defendant] up
against the wall in the store”; and (3) asked defendant what he was doing inside the
store, even though the answer to that question was obvious.
¶ 60 We are not persuaded by defendant’s arguments. First, we believe that the
police officers’ arrival in a marked car, standing alone, is insufficient to create the
threatening presence of several officers for purposes of Mendenhall. Furthermore,
Officer Davis testified that defendant and the other men independently dispersed
after the officers’ arrival, suggesting that the men felt free to leave and did not feel
threatened by the officers’ presence.
¶ 61 Second, defendant’s characterization of Officer Davis’s allegedly compelling
conduct is not supported by the record. The evidence shows that Officer Davis
followed defendant and the other two men into the store, but there is no evidence
that Officer Davis focused on defendant. Indeed, Officer Davis acknowledged that
he did not have a specific description of the individuals alleged to be involved in
narcotics activity at the store. Officer Davis also testified that he directed his
questions to all three of the men inside the store. Nor is there any evidence that
Officer Davis “backed” defendant into the wall. To the contrary, Officer Davis
testified that defendant and the other men were already next to a wall at the back of
the store when Officer Davis arrived. Officer Davis simply walked to their location.
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¶ 62 Third, there is nothing particularly coercive or unusual about Officer Davis
asking defendant why he was inside the store when Officer Davis was at the store to
investigate allegations that individuals were selling narcotics inside that store. To
complete that investigation, Officer Davis would necessarily have to pose general
questions to the store’s occupants.
¶ 63 To the extent that defendant challenges the credibility of Officer Davis’s
account, we note that the trial court recognized that this case involved a credibility
determination. Indeed, at the suppression hearing, defendant and Officer Davis
offered completely different versions of the encounter inside the store. The court,
however, expressly resolved the credibility issue in Officer Davis’s favor, finding
that his testimony was clear and credible. Nothing in the record suggests that the
trial court’s assessment was against the manifest weight of the evidence or should
otherwise be disturbed. See Hackett, 2012 IL 111781, ¶ 18 (when reviewing a
suppression ruling, this court affords great deference to the trial court’s findings of
fact and will reverse those findings only if they are against the manifest weight of
the evidence).
¶ 64 Under the circumstances of this case, we conclude that the interaction between
Officer Davis and defendant was a consensual encounter and that defendant was
not seized within the meaning of the fourth amendment. After defendant indicated
that he was armed, Officer Davis properly searched him and recovered the loaded
firearm.
¶ 65 Accordingly, we reject defendant’s fourth amendment argument challenging
his arrest and the recovered evidence. In addition, because we conclude that the
incident between Officer Davis and defendant was a consensual encounter that did
not implicate the fourth amendment, we do not need to address defendant’s
remaining argument that the incident constituted an improper Terry stop that lacked
reasonable suspicion under the United States Supreme Court’s decision in Florida
v. J.L., 529 U.S. 266 (2000).
¶ 66 III. CONCLUSION
¶ 67 For the reasons explained above, we reverse the part of the appellate court’s
judgment that vacated defendant’s conviction and sentence for UUW by a felon
based on his possession of firearm ammunition. We, therefore, reinstate that
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conviction and sentence. Thus, as the parties originally agreed in the appellate court
(2011 IL App (1st) 093587-U, ¶¶ 74-76), defendant was properly convicted of
armed habitual criminal based on his possession of a firearm (Count I) and UUW
by a felon based on his possession of firearm ammunition (Count III). The trial
court imposed prison terms of six years and three years, respectively, on those
convictions, to be served concurrently. We affirm those convictions and sentences.
¶ 68 We also reject defendant’s fourth amendment challenge because the underlying
incident was a consensual encounter. McDonough, 239 Ill. 2d at 268; Luedemann,
222 Ill. 2d at 544-45. For that reason, we affirm the part of the appellate court’s
judgment that affirmed the circuit court’s denial of defendant’s motion to quash
arrest and suppress evidence.
¶ 69 Appellate court judgment reversed in part and affirmed in part.
¶ 70 CHIEF JUSTICE GARMAN, concurring in part and dissenting in part:
¶ 71 I agree with the majority’s analysis of the issues in defendant’s cross-appeal.
However, the majority holds that defendant may be convicted of armed habitual
criminal (720 ILCS 5/24-1.7 (West 2008)) for possession of the firearm and of
unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2008)) (UUW by a
felon) for possession of the ammunition that was loaded inside the firearm. Because
the majority misconstrues the language of the UUW by a felon statute and
erroneously holds that the one-act, one-crime rule does not apply in this case, I
respectfully dissent.
¶ 72 The majority first addresses the issue of whether the UUW by a felon statute
permits multiple convictions for what would otherwise constitute a single act, i.e.,
the simultaneous possession of a firearm and firearm ammunition. In People v.
Carter, 213 Ill. 2d 295 (2004), this court construed the then-current version of the
UUW by a felon statute to permit only one conviction for the simultaneous
possession of two handguns and two clips of ammunition for the guns. The
defendant had been charged under the UUW by a felon statute with four counts, one
count for each handgun and each clip of ammunition. On appeal to this court, the
defendant argued that he could not be convicted of multiple offenses for a single
simultaneous act of possession. He thus argued that three of his convictions must be
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vacated. The defendant relied on this court’s prior decision in People v. Manning,
71 Ill. 2d 132 (1978), which held that the simultaneous possession of different types
of drugs could not support multiple convictions, absent an express statutory
provision to the contrary. In Carter, we held that the UUW by a felon statute was
ambiguous as to whether the legislature intended the simultaneous possession of
weapons and ammunition to constitute a single offense or multiple offenses. We
noted that this court has consistently held that where a statute is ambiguous, in the
absence of a statutory provision to the contrary, simultaneous possession could not
support multiple convictions. Carter, 213 Ill. 2d at 302.
¶ 73 As indicated by the majority, the legislature subsequently amended the UUW
by a felon statute in response to Carter. The statute now provides that “[t]he
possession of each firearm or firearm ammunition in violation of this Section
constitutes a single and separate violation.” (Emphasis added.) 720 ILCS
5/24-1.1(e) (West 2008). In this case, the State argues that the plain language of this
section permits multiple convictions for the simultaneous possession by defendant
of the firearm and the ammunition loaded inside the firearm. Defendant, on the
other hand, argues that the statutory amendment did not abrogate the one-act,
one-crime rule; rather, it authorizes multiple convictions only for the separate
possession of multiple firearms and/or ammunition and not for the simultaneous act
of possessing a loaded firearm. Therefore, according to defendant, the amendment
is ambiguous.
¶ 74 The majority agrees with the State and holds that under the plain language of
the amendment to the UUW by a felon statute, multiple convictions may be had for
the simultaneous possession of a firearm and the ammunition loaded therein, noting
that the statutory amendment adopted language we recognized in Carter would
authorize separate convictions for simultaneous possession. Supra ¶ 43.
¶ 75 I agree in principle with the majority’s analysis to the extent it holds that
separate convictions may be had under the UUW by a felon statute for the
simultaneous possession of a firearm and the ammunition loaded within it.
However, whether defendant can be convicted of both offenses under the UUW by
a felon statute is not the issue in this case. Defendant was not charged with both
offenses under that statute. The two charges at issue in this appeal are possession of
a firearm under the armed habitual criminal statute and possession of the
ammunition loaded in the firearm under the UUW by a felon statute. It is irrelevant
for purposes of this appeal whether a defendant may be convicted of both offenses
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under the UUW by a felon statute. One need only look to the language of that
statute to understand the error in the majority’s analysis. As previously stated, the
amended statute provides that “[t]he possession of each firearm or firearm
ammunition in violation of this Section constitutes a single and separate violation.”
The plain language of the amendment demonstrates that it applies only where a
defendant is charged with multiple offenses under the UUW by a felon statute. That
is not the case here.
¶ 76 The majority cites two appellate court decisions in support of its construction of
the UUW by a felon statute. Supra ¶ 40. However, these decisions are inapplicable
to this case. In People v. Anthony, 2011 IL App (1st) 091528-B, the defendant was
convicted of two counts of violating the UUW by a felon statute. One count
charged him with possession of a handgun. The other count charged him with
possession of the ammunition loaded inside the handgun. The appellate court
affirmed his convictions. The defendant argued on appeal that one of his
convictions should be vacated because the legislature did not intend to permit
multiple convictions based upon the possession of a single loaded firearm. The
appellate court framed the issue as whether the UUW by a felon statute permits
separate offenses to be charged for simultaneous possession of a handgun and the
firearm ammunition inside of that handgun. The court found that the plain and
unambiguous language of the statute permitted such convictions, noting
particularly the post-Carter amendment with its “single and separate violation”
language. (Internal quotation marks omitted.) Id. ¶ 9. People v. Howard, 2014 IL
App (1st) 122958, followed the reasoning of Anthony. Unlike the instant case, both
Anthony and Howard involved multiple charges for possession of a firearm and
ammunition loaded therein under the UUW by a felon statute. Neither of these
cases applies here, where defendant was charged with only one offense under the
UUW by a felon statute.
¶ 77 The language of the UUW by a felon statute added in response to Carter makes
clear that the legislature intended to abrogate the one-act, one-crime rule only with
respect to offenses charged under “this Section.” The majority cites no authority for
the notion that by amending the UUW by a felon statute, the legislature intended to
allow multiple convictions based upon the same physical act where the State
charges a defendant with only one offense under the UUW by a felon statute and a
second offense under an entirely different provision of the Criminal Code of 1961.
While the offense of armed habitual criminal is contained in the same article as the
offense of UUW by a felon, the amendment to the UUW by a felon statute refers to
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“this Section,” not to “this Article.” Thus, the legislature did not provide for
multiple offenses to be carved from the same physical act unless both the offenses
were violations of the UUW by a felon statute.
¶ 78 Since the UUW by a felon statute is not implicated in this case, the question
becomes whether defendant’s convictions for simultaneously possessing a firearm
and the ammunition loaded in it violate the one-act, one-crime doctrine. Under that
doctrine, a defendant may not be convicted of multiple offenses that are carved out
of precisely the same physical act. People v. King, 66 Ill. 2d 551 (1977); People v.
Rodriguez, 169 Ill. 2d 183, 186 (1996). “Act” refers to any overt or outward
manifestation that will support a different offense. A defendant may be convicted
of multiple offenses where he has committed several acts, despite the
interrelationship of those acts. King, 66 Ill. 2d at 566.
¶ 79 The majority holds that defendant’s convictions for possession of a firearm and
the ammunition loaded inside it do not violate the one-act, one-crime rule. Despite
the simultaneous nature of defendant’s possession, the majority stresses that he
possessed two different items of contraband, i.e., the firearm and the ammunition.
According to the majority, possession of either item is an independent criminal
offense. Thus, the majority finds that defendant’s acts were merely interrelated
rather than one simultaneous act of possession. Supra ¶ 48. I disagree with this
analysis.
¶ 80 The determinative factor in a one-act, one-crime analysis is not how the State
charges the offenses. Absent statutory authority, the State may not divide one
physical act into multiple offenses by the manner in which it charges the defendant.
Instead, we must look to the nature of the act itself, i.e., whether the defendant
committed more than one physical act that would support separate offenses. King,
66 Ill. 2d at 566. Here, the firearm was loaded with ammunition. Necessarily, the
possession of the firearm and the ammunition was simultaneous. Both items of
contraband were possessed with one physical act. It is impossible to separate the
possession of the firearm from the possession of the ammunition within it. The
majority does not attempt to explain how the single physical act of possession of a
firearm loaded with ammunition can constitute multiple physical acts. Indeed, the
majority does not claim that the possession here was anything other than
simultaneous; instead, the majority relies on the fact that defendant possessed two
different items of contraband. This is not the test. The test is whether there was one
or more physical acts. Clearly, in this case there was only one physical act.
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¶ 81 The majority rejects defendant’s argument that his possession of a loaded
firearm constituted a single physical act, noting that defendant was not charged
with possessing a loaded firearm. Instead, the State charged him with one count of
possessing the firearm and one count of possessing the ammunition. The majority
finds that this shows the State’s intent to treat defendant’s conduct as separate and
multiple acts. This court has held that the one-act, one-crime rule is not a rule of
constitutional dimension. See People v. Artis, 232 Ill. 2d 156, 164 (2009).
Therefore, the legislature may, as it has done in the UUW by a felon statute, allow
for multiple offenses based upon the same physical act. However, this is a
legislative, not a prosecutorial, prerogative.
¶ 82 The majority relies on this court’s decision in People v. Crespo, 203 Ill. 2d 335
(2001) for the proposition that to comply with King and obtain multiple
convictions, the charging instrument must indicate that the State intends to treat a
defendant’s conduct as separate and multiple acts. Supra ¶ 49. Crespo is inapposite
to the instant case. In Crespo, the defendant was charged with murder of one victim
and aggravated battery for the stabbing of a second victim. The defendant stabbed
the second victim three times in rapid succession, once in the arm and twice in the
thigh. As to that victim, the State charged the defendant with one count of armed
violence and two counts of aggravated battery, one for intentionally causing bodily
harm and one for using a deadly weapon. He was convicted of the murder of the
first victim and of all counts as to the second victim. The appellate court vacated
one of the aggravated battery convictions. Before this court, the defendant argued
that his remaining conviction for aggravated battery could not stand because it was
based on the same physical act that formed the basis for the armed violence charge.
The State argued that the defendant stabbed the victim three times and that each act
of stabbing constituted a separate offense. Although this court acknowledged that
each act of stabbing could support a separate offense, the court noted that this was
not the theory the State used in charging the defendant or in presenting the case to
the jury. The State treated the multiple stabbings as a single attack and this court
declined to allow the State to change its charging theory on appeal to the
defendant’s detriment. Crespo, 203 Ill. 2d at 343-44.
¶ 83 Crespo does not stand for the proposition that the manner in which a defendant
is charged by the State determines whether a single physical act may be treated as
multiple acts; rather, Crespo teaches that if the defendant has committed multiple
acts, the State must make its intention to charge multiple offenses clear in the
charging instrument and may not change its theory of the case on appeal. Crespo
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does not support the proposition that, absent statutory authority, the State may
charge multiple offenses based upon the same physical act.
¶ 84 The majority opines that, “[s]imply stated, the act of possession of a firearm is
materially different from the act of possession of firearm ammunition, even if both
items are possessed simultaneously.” Supra ¶ 48. The majority does not elaborate
on what the material difference is. Further, if the majority’s statement were true, it
would not have been necessary for the legislature to amend the UUW by a felon
statute to provide that the simultaneous possession of firearms and ammunition
constitutes a single and separate violation under that statute, following our decision
in Carter. 720 ILCS 5/24-1.1 (West 2008). Although Carter was not based upon
one-act, one-crime principles, implicit in the court’s opinion was that the act upon
which the defendant’s multiple convictions was based constituted a single physical
act. Were it otherwise, no question would have arisen as to whether the defendant
could be convicted of multiple offenses under the UUW by a felon statute for the
simultaneous possession of firearms and ammunition.
¶ 85 In sum, I would hold that defendant may not be convicted under both the armed
habitual criminal statute and the UUW by a felon statute of multiple offenses based
upon the simultaneous possession of a firearm and of the ammunition loaded
therein. These offenses are based upon a single physical act and, in the absence of a
legislative provision to the contrary, defendant may be convicted of only one
offense. Since armed habitual criminal is the more serious offense, defendant’s
conviction for UUW by a felon must be vacated.
¶ 86 Therefore, while I concur in the majority’s rejection of defendant’s fourth
amendment challenge, I respectfully dissent from the majority’s holding that
defendant was properly convicted of both armed habitual criminal and UUW by a
felon.
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