People v. Almond , 2015 IL 113817 ( 2015 )

Illinois Official Reports
Supreme Court
People v. Almond, 2015 IL 113817
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: ANTONIO ALMOND, Appellee.
Docket No. 113817
Filed February 20, 2015
Rehearing denied May 26, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Thomas Joseph Hennelly, Judge, presiding.
Judgment Appellate court judgment reversed in part and affirmed in part.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita M.
Appeal Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Annette
Collins and Mary P. Needham, Assistant State’s Attorneys, of
counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Deputy Defender, and Ginger Leigh Odom, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of Chicago,
for appellee.
Justices 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.
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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.”
¶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.
¶ 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
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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 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.
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¶ 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 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 ammunition were proper and should be affirmed. 2011 IL App
(1st) 093587-U, ¶ 135 (Garcia, J., concurring in part and dissenting in part).
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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¶ 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 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.
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¶ 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 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
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firearm or firearm ammunition in violation of this Section constitutes a single and separate
violation”).
¶ 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.
¶ 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
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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).
¶ 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
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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.
¶ 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.
¶ 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.
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¶ 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).
¶ 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 a 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
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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.
¶ 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 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
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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 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.
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¶ 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 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 “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
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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.
¶ 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
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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 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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