People v. Johnson

Docket No. 107975.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RAYMOND JOHNSON, Appellant.
Opinion filed April 15, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a stipulated bench trial in the circuit court of Peoria
County, defendant was found guilty of aggravated battery with a
firearm (720 ILCS 5/12–4.2(a)(1) (West 2006)), aggravated unlawful
use of a weapon (720 ILCS 5/24–1.6(a)(1) (West 2006)), and
unlawful possession of a weapon by a felon (720 ILCS 5/24–1.1(a)
(West 2006)) and sentenced to 12 years’ imprisonment. The appellate
court vacated the conviction for unlawful possession of a weapon by
a felon, affirmed the judgment in all other respects, and remanded the
cause with instructions to amend the sentencing order. 387 Ill. App.
3d 780. For the reasons set forth below, we affirm.
BACKGROUND
Defendant was arrested July 9, 2006, in connection with the
shooting of Calvin Powell. Before trial, defendant filed a motion to
quash arrest and suppress evidence discovered during a police search
of a vehicle owned by Lawrence Thomas. The circuit court heard
evidence on the motion from two police officers, Officer Chris Hanley
and Lieutenant Jeff Adams. Officer Hanley testified that at
approximately 3 a.m. on July 9, he was with Illinois State Police
officers at an accident scene when police dispatchers notified him that
there had been a shooting approximately six blocks away. Officer
Hanley immediately drove toward the reported location. As he
approached, he saw defendant and Thomas get into a white Ford
Explorer, later identified as Thomas’s, that had been parked in the
parking lot of the Friendship House, a closed business. According to
Officer Hanley, the Friendship House parking lot is just across an alley
from the location of the reported shooting. Officer Hanley followed
the men out of the Friendship House parking lot in his marked squad
car, but he did not activate his lights or siren.
Thomas drove a few blocks to the nearby Taft Homes, where he
parked the Explorer, and defendant and Thomas got out of the car and
began to walk away. Officer Hanley pulled into the lot and parked
approximately 50 to 75 feet away from the Explorer, shining his
spotlight on the two men as he approached. They stopped, and Officer
Hanley asked them several questions about where they were coming
from and whether they knew anything about the reported shooting.
According to Officer Hanley, the men were cooperative but vague,
and they seemed nervous. He asked them for identification, which they
provided, and he ran a warrant check, which revealed no outstanding
warrants. Officer Hanley then asked for consent to search the men,
and they agreed. When he found nothing, he asked Thomas for
consent to search the Explorer. Thomas refused, but Officer Hanley’s
supervisor, Lieutenant Adams, who had arrived a few minutes after
Officer Hanley, directed Officer Hanley to search the Explorer
anyway. The officers did not have a warrant. Thomas and defendant
were handcuffed and put into the back of a squad car while officers
searched the Explorer. Under the front passenger seat, officers found
a .22-caliber handgun. Defendant was arrested, and he later admitted
that he had used the handgun to shoot at the victim.
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Lieutenant Adams also testified at the hearing on defendant’s
motion. According to his testimony, he was patrolling when he heard
that officers were reporting to a shooting, and he was among the first
officers to arrive at the scene. There, the officers found a man
bleeding on the floor and a woman who said that she had heard shots
behind the house, which Lieutenant Adams explained to the court was
in the same direction as the Friendship House. Upon hearing that
Officer Hanley had followed two men from the Friendship House to
the Taft Homes, Lieutenant Adams left the shooting scene and drove
to the Taft Homes to provide backup. When he arrived, Lieutenant
Adams saw Officer Hanley talking with defendant and Thomas.
Officer Hanley informed Lieutenant Adams that the men had
consented to a search of their persons but were refusing to consent to
search of the Explorer. Believing probable cause existed to conduct
a warrantless search, Lieutenant Adams directed Officer Hanley and
other officers who had arrived at the Taft Homes to secure the two
men and search the Explorer.
In support of his motion to quash the arrest and suppress the
handgun, defendant argued that the search of the Explorer was
unconstitutional. The State responded that as a mere passenger in the
Explorer, defendant lacked standing to challenge the search. Because
the parties had not addressed the issue of standing in their opening
briefs, the court continued the hearing and allowed both sides time to
file supplemental briefs. After receiving the supplemental briefs and
hearing argument, the court ruled that defendant lacked standing,
although it noted that if defendant had been the driver, the court
would have granted the motion.
Defendant then filed a motion to suppress statements he made to
police while in custody following the search. He argued that the stop
and seizure of his person exceeded what was permissible for an
investigative stop and that officers lacked probable cause to extend the
seizure. Therefore, defendant argued, the statements he made to the
police after his arrest were inadmissible fruits of the poisonous tree.
The court denied the motion, finding that police had probable cause
to arrest defendant after they found the gun in the Explorer.
After a stipulated bench trial, the court found defendant guilty of
aggravated battery with a firearm (720 ILCS 5/12–4.2(a)(1) (West
2006)), aggravated unlawful use of a weapon (720 ILCS
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5/24–1.6(a)(1) (West 2006)), and unlawful possession of a weapon by
a felon (720 ILCS 5/24–1.1(a) (West 2006)). The court sentenced
defendant to 12 years’ imprisonment for aggravated battery, 7 years’
imprisonment for aggravated unlawful use of a weapon, and 7 years’
imprisonment for unlawful possession of a weapon by a felon, all
sentences to run concurrently.
Defendant appealed, arguing the circuit court improperly denied
his motions because the initial stop of defendant and Thomas had
resulted in an unlawful arrest of defendant. The State continued to
argue defendant lacked standing and, in the alternative, it argued the
stop did not amount to an unlawful arrest. The appellate court
affirmed (387 Ill. App. 3d 780), finding the search of the Explorer was
justified under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.
1868 (1968) and Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d
1201, 103 S. Ct. 3469 (1983). Because it found the search was
constitutional, the appellate court declined to address the standing
issue. 387 Ill. App. 3d at 792.
Defendant also argued on appeal that his convictions for unlawful
possession of a weapon by a felon and aggravated unlawful use of a
weapon were premised on the same physical act, and therefore the
convictions violated the one-act, one-crime rule. The State conceded
that the two convictions violated the one-act, one-crime rule and that
one of the convictions had to be vacated. However, while defendant
argued unlawful possession of a weapon by a felon was the more
serious offense, such that the aggravated unlawful use of a weapon
conviction should be vacated, the State maintained aggravated
unlawful use of a weapon was the greater offense, and the unlawful
possession of a weapon by a felon must be vacated. The court agreed
with the State, and therefore it vacated defendant’s conviction for
unlawful possession of a weapon by a felon and remanded the cause
to the circuit court to amend the sentencing order. 387 Ill. App. 3d at
795. We granted defendant’s petition for leave to appeal pursuant to
Supreme Court Rule 315 (210 Ill. 2d R. 315).
ANALYSIS
Motions to Suppress
In reviewing a trial court’s ruling on a motion to suppress
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evidence, we apply the two-part standard of review adopted by the
Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134
L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). People v. Cosby,
231 Ill. 2d 262, 271 (2008), quoting People v. Luedemann, 222 Ill. 2d
530, 542-43 (2006). Under this standard, we give deference to the
factual findings of the trial court, and we will reject those findings only
if they are against the manifest weight of the evidence. Cosby, 231 Ill.
2d at 271, quoting Luedemann, 222 Ill. 2d at 542-43. However, a
reviewing court “ ‘remains free to undertake its own assessment of the
facts in relation to the issues,’ ” and we review de novo the trial
court’s ultimate legal ruling as to whether suppression is warranted.
Cosby, 231 Ill. 2d at 271, quoting Luedemann, 222 Ill. 2d at 542-43.
The fourth amendment to the United States Constitution
guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., amend. IV. Reasonableness under the fourth
amendment generally requires a warrant supported by probable cause.
Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88
S. Ct. 507, 514 (1967); People v. Galvin, 127 Ill. 2d 153, 169 (1989).
The Supreme Court recognized a limited exception to the traditional
warrant requirement in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968). Under the Terry exception, a police officer
may briefly stop a person for temporary questioning if the officer
reasonably believes the person has committed, or is about to commit,
a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at
1880. In this case, we need not examine the basis for Officer Hanley’s
initial stop of defendant and Thomas, because defendant concedes it
was lawful under Terry principles.
Instead, defendant argues that the search of Thomas’s vehicle was
unlawful and not justified as part of the Terry stop. Before the trial
court, the State responded that defendant lacked “standing” to
challenge the search of Thomas’s vehicle. Although the appellate
court found it unnecessary to determine whether defendant had
standing, the State reasserts the argument here, noting this court may
affirm on any basis found in the record. See, e.g., People v. Durr, 215
Ill. 2d 283, 296 (2005). As the State acknowledges, although the
parties framed the question as one of “standing” to challenge the
vehicle search, this court no longer uses the rubric of “standing” when
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analyzing fourth amendment claims. People v. Sutherland, 223 Ill. 2d
187, 229-30 (2006), citing People v. Pitman, 211 Ill. 2d 502, 521
(2004); Rakas v. Illinois, 439 U.S. 128, 138-40, 58 L. Ed. 2d 387,
398-99, 99 S. Ct. 421, 427-29 (1978). Instead, the relevant inquiry is
whether the person claiming the protections of the fourth amendment
had a legitimate expectation of privacy in the place searched.
Sutherland, 223 Ill. 2d at 230, citing Pitman, 211 Ill. 2d at 514;
People v. Kidd, 178 Ill. 2d 92, 135 (1997), citing Rakas, 439 U.S. at
143, 58 L. Ed. 2d at 401, 99 S. Ct. at 430. Factors relevant in
determining whether a legitimate expectation of privacy exists include
the individual's ownership or possessory interest in the property; prior
use of the property; ability to control or exclude others’ use of the
property; and subjective expectation of privacy. Sutherland, 223 Ill.
2d at 230, citing People v. Johnson, 114 Ill. 2d 170, 191-92 (1986).
The defendant challenging a search has the burden of establishing that
he had a legitimate expectation of privacy in the searched property.
Johnson, 114 Ill. 2d at 191-92.
Defendant does not argue before this court that he had a legitimate
expectation of privacy in Thomas’s vehicle, and we find that the
record would not support such an argument. Defendant had been a
passenger in the vehicle, and no evidence in the record suggests that
defendant had any ownership or possessory interest in the vehicle.
Similarly, defendant failed to provide any evidence that he had
previously used the vehicle, that he could control others’ use of the
property, or that he had any subjective expectation of privacy in the
vehicle. On this record, we are compelled to conclude that defendant
had no legitimate expectation of privacy in Thomas’s vehicle, and he
therefore may not challenge the search of the vehicle.
Brendlin v. California, 551 U.S. 249, 168 L. Ed. 2d 132, 127 S.
Ct. 2400 (2007), on which defendant relies, offers little support for his
position. In that case, the defendant was a passenger in a vehicle
stopped without reasonable suspicion, in violation of Terry. Brendlin,
551 U.S. at 252-56, 168 L. Ed. 2d at 136-39, 127 S. Ct. at 2403-06.
The defendant challenged the seizure of the vehicle as unlawful, but
the trial court found that the defendant had not been seized by the
initial stop of the vehicle. Brendlin, 551 U.S. at 253, 168 L. Ed. 2d at
137, 127 S. Ct. at 2404. The Supreme Court disagreed, holding that
the defendant was “seized” within the meaning of the fourth
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amendment when police officers stopped the vehicle, and the
defendant could challenge the unlawful stop. Brendlin, 551 U.S. at
251, 168 L. Ed. 2d at 136, 127 S. Ct. at 2403.
Initially, we note that Brendlin involved a vehicle stop, while
defendant and the State both agree that this case is properly analyzed
as a traditional Terry stop. Even if we assume Brendlin applies,
however, the State acknowledges that defendant’s person was
“seized” when Officer Hanley stopped defendant and Thomas in the
Taft Homes parking lot. As we have explained, Terry and its progeny
allow for a brief stop–and therefore necessarily a brief seizure–of a
person when the officer reasonably believes the person has committed,
or is about to commit, a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at
906-07, 88 S. Ct. at 1880. Moreover, unlike the defendant in
Brendlin, defendant here concedes that the Terry stop was lawful and
is challenging only the subsequent actions of the police officers. Thus,
Brendlin’s holding that a passenger in a traffic stop is “seized” is of
little relevance.
Defendant also argues, however, that the he was arrested without
probable cause during the encounter at Taft Homes. According to
defendant, anything obtained during the search of the vehicle was
therefore “fruit of the poisonous tree” and inadmissible against
defendant without regard to his expectation of privacy in the vehicle.
See People v. Brownlee, 186 Ill. 2d 501, 521 (1999). We disagree.
“[W]here an officer’s confinement of a person goes beyond the
limited restraint of a Terry investigative stop, a subsequent consent to
search may be found to be tainted by the illegality.” Brownlee, 186 Ill.
2d at 519, citing Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d
229, 238-39, 103 S. Ct. 1319, 1326 (1983). Thus, evidence obtained
as a result of an illegal arrest may be subject to the exclusionary rule
and inadmissible. See, e.g., Wong Sun v. United States, 371 U.S. 471,
484-86, 9 L. Ed. 2d 441, 453-54, 83 S. Ct. 407, 415-17 (1963).
However, a determination that defendant was illegally detained will
not necessarily resolve the issue of whether subsequently obtained
evidence is admissible. People v. Lovejoy, 235 Ill. 2d 97, 130 (2009).
Instead, as we have explained,
“The relevant inquiry is whether the [evidence] bear[s] a
sufficiently close relationship to the underlying illegality. New
York v. Harris, 495 U.S. 14, 19, 109 L. Ed. 2d 13, 21, 110 S.
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Ct. 1640, 1643 (1990). Generally, courts resolve this question
by considering whether the evidence was obtained ‘by means
sufficiently distinguishable to be purged of the primary taint’
of illegality. Wong Sun v. United States, 371 U.S. 471, 487-
88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963).
However, this attenuation analysis is only appropriate where
the evidence sought to be suppressed was actually obtained as
a result of some illegal government activity. [Citations.]”
(Emphasis added.) Lovejoy, 235 Ill. 2d at 130.
As the Seventh Circuit has noted, “[t]here must be some causal nexus
between the illegal police activity and the disputed evidence.” United
States v. Meece, 580 F.3d 616, 619 (7th Cir. 2009).
In the present case, defendant argues that the evidence found in
Thomas’s vehicle was tainted by an illegal arrest that occurred when
officers handcuffed him and placed him in the back of a squad car.
Even if defendant is correct that the officers’ actions escalated an
otherwise reasonable Terry investigative stop into an arrest, it is clear
that the evidence obtained from the car was not obtained “as a result
of” that arrest. According to the testimony at the hearing on
defendant’s motion, Lieutenant Adams directed Officer Hanley to
search the car after Thomas refused consent. Only then, as the search
began, did the officers handcuff defendant and put him in the squad
car to facilitate the search. Regardless of whether those actions
amounted to an unlawful arrest, the alleged arrest did not lead to the
search. Therefore, the alleged arrest could not have tainted the search
with illegality.
Defendant also asks us to suppress statements he made at the
police station following his formal arrest (which occurred after the
search of Thomas’s car). However, defendant’s argument that the
alleged arrest tainted the subsequent incriminating statements is
similarly unpersuasive. Again, the relevant inquiry is whether the
statements were obtained by exploitation of the allegedly illegal arrest
or “ ‘ “by means sufficiently distinguishable to be purged of the
primary taint.” ’ ” People v. Morris, 209 Ill. 2d 137, 157 (2004),
quoting Wong Sun, 371 U.S. at 488, 9 L. Ed. 2d at 455, 83 S. Ct. at
417, quoting J. Maguire, Evidence of Guilt 221 (1959). Although the
defendant’s statements to the police followed the alleged arrest in
time, we find the statements were sufficiently attenuated from the
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alleged arrest so as to remove any possible “taint.”
Factors to be considered in determining whether a statement is the
product of an illegal arrest include: (1) the proximity in time between
the arrest and the statement; (2) the presence of intervening
circumstances; (3) the flagrancy of the police misconduct; and (4)
whether Miranda warnings were given before the statements were
made. Morris, 209 Ill. 2d at 157. The record in this case does not
indicate how much time passed between the alleged arrest and
defendant’s statements at the police station. We have noted that the
temporal proximity between the arrest and the statement is often an
ambiguous factor, the significance of which will depend on the
circumstances of the case, including the conditions under which the
time passes. Morris, 209 Ill. 2d at 160; People v. White, 117 Ill. 2d
194, 223-24 (1987). Thus, without record evidence of those
circumstances in this case, the temporal-proximity analysis is not
helpful.
The State argues that the gun found in Thomas’s vehicle provided
intervening probable cause that weighs in favor of attenuation in this
case. We agree. Although the presence of intervening probable cause
does not assure attenuation in every case, it is an important factor in
the attenuation analysis. Morris, 209 Ill. 2d at 158; see also People v.
Ornelas, 295 Ill. App. 3d 1037, 1045 (1998). Here, the presence of
a loaded gun under the front seat of Thomas’s car provided probable
cause to arrest defendant that we have already explained was
independent of the alleged arrest. As we noted in Morris,
“Had the officers decided at this time that defendant’s
initial detention was illegal, they could have released him and
then, based upon the probable cause that developed
independently of his initial arrest, immediately arrested him
again. Under this scenario, there would be no question that
defendant’s statements and confession would be admissible. It
follows, then, that the probable cause that would support a
second arrest only minutes after defendant’s first arrest also
serves to break the causal connection between defendant’s
first illegal arrest and the statements ***.” Morris, 209 Ill. 2d
at 159.
Accordingly, based on the facts in this case, the development of
independent probable cause weighs heavily in favor of attenuation.
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With respect to the third factor, this court has explained that
officer conduct is “flagrant” when it is carried out in such a manner as
to cause surprise, fear, and confusion, or when it has a quality of
purposeful or intentional misconduct. People v. Foskey, 136 Ill. 2d 66,
86 (1990), citing Brown v. Illinois, 422 U.S. 590, 605, 45 L. Ed. 2d
416, 428, 95 S. Ct. 2254, 2262 (1975). None of those factors were
present in this case. Even if we accept defendant’s argument that the
officers’ conduct was improper, not all improper conduct is flagrant.
Nothing in the record suggests that the officers intimidated or bullied
defendant, nor did defendant testify that he was frightened or confused
by the officers’ actions. Similarly, we do not find any suggestion that
the officers engaged in intentional misconduct. According to
defendant, the officers’ act of handcuffing defendant and seating him
in the backseat of a squad car amounted to an unlawful arrest. We
need not determine whether, considering all of the circumstances of
this case, the officers’ actions were unlawful. However, we note that
several federal courts of appeal have held that actions similar to those
taken by police officers in this case did not amount to an illegal arrest.
See, e.g., United States v. Tilmon, 19 F.3d 1221, 1226 (7th Cir. 1994)
(firearms displayed, defendant handcuffed and seated in squad car
during search); United States v. Taylor, 716 F.2d 701, 709 (9th Cir.
1983) (defendant handcuffed and forced to lie down on the ground
during frisk); United States v. Merkley, 988 F.2d 1062, 1064 (10th
Cir. 1993) (firearms displayed and defendant handcuffed). Thus, even
if the officers’ actions in this case elevated the stop into an unlawful
arrest, their actions were certainly not flagrant misconduct.
Finally, there is no question that defendant was read his Miranda
rights prior to giving his statement at the police station. While the
presence of Miranda warnings alone is not sufficient to purge the taint
of illegality from an illegal arrest, it is a factor to be considered.
Morris, 209 Ill. 2d at 158. When the Miranda warnings are taken
together with the intervening circumstances and lack of flagrant
misconduct in this case, it becomes clear that the statements defendant
made to the police were sufficiently attenuated from the alleged arrest
to purge any taint of illegality. Thus, the trial court properly denied
defendant’s motion to suppress the statements.
Our conclusion that neither the search of Thomas’s vehicle nor
defendant’s statements to the police were tainted by any alleged
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illegality makes it unnecessary for us to determine whether defendant
was, in fact, arrested when officers handcuffed him and seated him in
the squad car. We therefore express no opinion on that issue.
In summary, defendant did not have a legitimate expectation of
privacy in Thomas’s vehicle, and he argues no other basis which
would allow us to find that defendant’s fourth amendment rights were
violated. Without such a basis, defendant may not challenge the
validity of the search, and the trial court properly denied his motions
to quash arrest and suppress evidence. We therefore need not address
his additional arguments related to the merits of the search, including
his argument that it was unlawful under the Supreme Court’s recent
decision in Arizona v. Gant, 556 U.S. ___, 173 L. Ed. 2d 485, 129 S.
Ct. 1710 (2009).
One-Act, One-Crime
Defendant also argues that his convictions for unlawful possession
of a weapon by a felon and aggravated unlawful use of a weapon are
both premised upon the same physical act and both cannot stand under
one-act, one-crime principles. Defendant asserts unlawful possession
of a weapon by a felon is the more serious offense, and therefore his
conviction for aggravated unlawful use of a weapon should be
vacated. The State concedes one of the convictions must be vacated,
but it asserts aggravated unlawful use of a weapon is the more serious
offense, citing its higher felony classification, higher minimum
sentence, and higher period of mandatory supervised release. The
State submits, therefore, that defendant’s conviction for unlawful
possession of a weapon by a felon should be vacated.
The application of the one-act, one-crime rule is a question of law,
which we review de novo. People v. Robinson, 232 Ill. 2d 98, 105
(2008). Under the rule, a defendant may not be convicted of multiple
offenses that are based upon precisely the same single physical act.
People v. Rodriguez, 169 Ill. 2d 183, 186 (1996); People v. King, 66
Ill. 2d 551, 566 (1977). Thus, if a defendant is convicted of two
offenses based upon the same single physical act, the conviction for
the less serious offense must be vacated. People v. Lee, 213 Ill. 2d
218, 226-27 (2004). It is the province of the legislature to determine
the seriousness of an offense. Lee, 213 Ill. 2d at 228. To determine
which of two offenses is the less serious, therefore, we consider the
intent of the legislature as expressed in the plain language of the
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statutes involved. Lee, 213 Ill. 2d at 228. As we have previously held,
common sense indicates that the legislature will provide a greater
punishment for the crime it deems to be more serious. Lee, 213 Ill. 2d
at 228.
In this case, the information charged that defendant committed
aggravated unlawful use of a weapon when he “did knowingly carry
on or abotu [sic] his person and immediately accessible to him an
uncased loaded handgun at a time when he was not on his own land,
or in his own abode or fixed place of business[,] and the defendant has
been previously convicted of a felony in this state,” in violation of
section 24–1.6(a)(1) of the Criminal Code of 1961 (the Code) (720
ILCS 5/24–1.6(a)(1) (West 2006)). The information also charged that
defendant committed unlawful possession of a weapon by a felon
when he “knowingly possessed on or about his person a firearm[,]
having been previously convicted of a felony under the laws of this
state or any other jurisdiction,” in violation of section 24–1.1(a) of the
Code (720 ILCS 5/24–1.1(a) (West 2006)). As the State concedes,
defendant’s convictions, as charged in this case, are clearly premised
on the same physical act of possessing the handgun on or about his
person.
With respect to the penalties, section 24–1.6 provides in pertinent
part that aggravated unlawful use of a weapon “is a Class 2 felony for
which the person shall be sentenced to a term of imprisonment of not
less than 3 years and not more than 7 years.” 720 ILCS 5/24–1.6(d)
(West 2006). Section 24–1.1 of the Code, on the other hand, provides
in pertinent part that unlawful possession of a weapon by a felon “shall
be a Class 3 felony for which the person, if sentenced to a term of
imprisonment, shall be sentenced to no less than 2 years and no more
than 10 years.” 720 ILCS 5/24–1.1(e) (West 2006). As a Class 2
felony, aggravated unlawful use of a weapon as charged in this case
is subject to a mandatory supervised release term of two years, while
unlawful possession of a weapon by a felon, as charged as a Class 3
felony in this case, is subject to a mandatory supervised release term
of one year. 730 ILCS 5/5–8–1(d)(2), (d)(3) (West 2006).
Defendant argues that unlawful possession of a weapon by a felon
is the greater offense, relying on the greater maximum sentence
allowed for that offense. Defendant also relies on Lee, in which we
held that aggravated battery with a firearm was a more serious offense
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than second degree murder based in part on the greater maximum
sentence allowed for aggravated battery with a firearm. Lee, 213 Ill.
2d at 228. However, although the maximum possible sentence is one
indicator of the legislature’s intent with respect to the seriousness of
the offense, it is not the only indicator. Lee, 213 Ill. 2d at 227-29. In
Lee, for example, we also considered the legislative classification. Lee,
213 Ill. 2d at 227-29. Where the relative seriousness of the offenses
could not be determined by reference to the comparative punishments
alone, we have also considered the mental state required for each
offense (People v. Mack, 105 Ill. 2d 103 (1984), vacated on other
grounds, 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266 (1987))
and the specificity with which each offense is defined in the statute
(City of Chicago v. Hill, 40 Ill. 2d 130, 136-37 (1968)). The
determinative question in each case is the intent of the legislature, and
we will not artificially narrow our attempts to determine that intent to
just one indicator. Instead, we consider the relevant statutes as a
whole and in context.
Turning back to the offenses at issue in this case, unlawful
possession of a weapon by a felon was given a lower felony
classification by the legislature, was made a probationable offense, and
was made subject to a shorter period of mandatory supervised release.
By contrast, aggravated unlawful use of a weapon was given a higher
felony classification by the legislature, was made a nonprobationable
offense, was given a higher minimum sentence of imprisonment, and
was made subject to a longer period of mandatory supervised release.
We conclude that the legislature intended for unlawful possession of
a weapon by a felon to be the less serious offense. Defendant’s
conviction for unlawful possession of a weapon by a felon must
therefore be vacated under our one-act, one-crime rule.
We note that the appellate court recently reached the opposite
conclusion regarding the same two offenses in People v. Martinez,
386 Ill. App. 3d 153, 166 (2008). There, the court summarily held,
without analysis, “unlawful use of a weapon by a felon is the most
serious offense in that it carries a greater range of sentence than
aggravated unlawful use of a weapon. Accordingly, the court agrees
that defendant’s conviction and sentence for aggravated unlawful use
of a weapon should be vacated.” Martinez, 386 Ill. App. 3d at 166.
The court did not consider the felony classifications of the offenses,
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the prescribed periods of mandatory supervised release, or the
possibility of probation. To the extent that Martinez is inconsistent
with our holding today, it is overruled.
CONCLUSION
We find that defendant had no legitimate expectation of privacy in
Thomas’s vehicle, and the police officers’ actions did not escalate the
stop of defendant into a warrantless arrest. Thus, the trial court
properly denied defendant’s motions to quash arrest and suppress
evidence. With respect to defendant’s one-act, one-crime argument,
we hold that aggravated unlawful use of a weapon is a more serious
offense than unlawful possession of a weapon by a felon, and
defendant’s conviction for unlawful possession of a weapon by a felon
must therefore be vacated.
For the reasons stated, we affirm the judgment of the appellate
court.
Affirmed.
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