People v. Evans

2021 IL App (1st) 191901-UNo. 1-19-1901
December 14, 2021
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 7356
)
CHARLES EVANS, ) Honorable
) Michael J. Kane,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Burke concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for being an armed habitual criminal is affirmed where the
trial court’s denial of his motion to suppress evidence was proper because the police
officer recovered the firearm from defendant after defendant stated he had a gun;
defendant’s challenge based on a Miranda violation is forfeited because it was not
litigated before the trial court.
¶2 Following a bench trial, defendant Charles Evans was convicted of being an armed habitual
criminal (720 ILCS 5/24-1.7(a) (West 2016)) and sentenced to the mandatory minimum term of
six years’ imprisonment. On appeal, defendant contends the trial court erred on two grounds when
No. 1-19-1901
it denied his motion to suppress evidence. Defendant first argues that the police officer conducted
an unlawful pat-down search of his person because the officer had no reasonable articulable
suspicion that defendant was armed and dangerous. Defendant also argues that his statement to
police during the traffic stop that he possessed a gun was made in response to an improper custodial
interrogation by the officer before defendant was advised of his Miranda rights. We affirm.
¶3 Defendant was charged with one count of being an armed habitual criminal, two counts of
unlawful use or possession of a weapon by a felon (UUWF), and four counts of aggravated
unlawful use of a weapon (AUUW). Defendant filed a pretrial “Motion to Suppress Physical
Evidence.” In his written motion, defendant argued that on April 28, 2017, Chicago police officers,
without lawful authority, illegally stopped a vehicle in which defendant was a passenger.
Defendant asserted that the officers thereafter illegally searched him without lawful authority and
seized certain property that might incriminate him, specifically, a handgun and bullets. Defendant
alleged that the police had no lawful authority to conduct the search and seizure because: (1) they
did not have a warrant or any other authority; (2) there were no exigent circumstances that excused
proceeding without a warrant; (3) no consent was given for the arrest, search, and seizure; and (4)
the search and seizure were not incident to nor contemporaneous with the valid arrest of defendant.
Defendant argued that the arrest, search, and seizure violated his rights under the fourth
amendment of the United States Constitution (U.S. Const., amend. IV), the Illinois Constitution
(Ill. Const. 1970, art. I, §§ 2, 6, 10), and the search and seizure statutes of the Illinois Code of
Criminal Procedure (Code) (725 ILCS 5/108-1 et seq. (West 2016)). Defendant asked the court to
suppress the seized evidence and all testimony relating to that evidence.
-2-
No. 1-19-1901
¶4 At the hearing on defendant’s motion to suppress, defense counsel orally amended the
written motion to also suppress a statement defendant made to police. Counsel added the words
“my statement” to the prayer for relief in the written motion where defendant had asked that the
seized evidence and related testimony be suppressed. The State acknowledged the amendment.
The prosecutor stated, “I believe it’s not a Fifth Amendment issue. Still falls under his Fourth
Amendment claims in the body of the motion.” Defense counsel did not disagree with the
prosecutor’s statement.
¶5 Defendant testified that about 11 p.m. on April 28, 2017, he was a passenger in Jayna
Marshall’s vehicle. Marshall was driving, defendant was in the front passenger seat, and
defendant’s five-year-old son was also in the vehicle. Marshall drove northbound on Indiana
Avenue through the green light at the intersection with 137th Street. Marshall told defendant that
a vehicle had pulled behind them with its lights turned off. Defendant looked in the outside mirror
on the passenger door and observed a dark SUV with its headlights off behind them. After they
drove over the Little Calumet River, the SUV behind them activated its flashing emergency lights.
Marshall pulled her vehicle over to the side of the road slightly north of 134th Street. Two police
officers approached Marshall’s vehicle on foot, one on the driver’s side and one on the passenger’s
side. The officers were not in uniform. Defendant assumed they were police officers because they
were wearing vests and walkie-talkies and had guns.
¶6 The officer on the driver’s side asked Marshall for her driver’s license. She did not have it.
The officer on the passenger’s side looked inside Marshall’s vehicle with a flashlight. The officer
on the driver’s side asked defendant if he had a driver’s license. Defendant replied, “no, sir.” That
same officer asked defendant if he had a state identification card. Defendant replied, “yes,” and
-3-
No. 1-19-1901
the officer asked him to produce it. Defendant told the officer that his identification card was inside
his wallet in his right pocket, and he was going to retrieve his wallet. Defendant removed his wallet
from his right front pocket and removed his identification card from his wallet. The officer on the
driver’s side took Marshall’s identification card from her. Defendant stated that, at that time, he
had not been doing anything wrong, he had not violated any laws, and the police did not claim to
have a warrant to search or arrest him.
¶7 Defendant handed his identification card to the officer on the passenger’s side, later
identified as Officer Joseph Byrne. Byrne took the identification card, grabbed defendant’s wrist
through the open window, and told him to exit the vehicle. Byrne opened the passenger’s door and
ordered defendant out of the vehicle. As defendant exited the vehicle, Byrne used “some force” to
get him out. Byrne did not remove his grip from defendant’s wrist. After defendant exited the
vehicle, Byrne brought defendant’s wrist behind his back, told defendant to place his other arm
behind his back, and handcuffed defendant. Byrne walked defendant a couple feet away from the
vehicle and left him standing on the sidewalk. Byrne returned to Marshall’s vehicle and searched
inside from the front to the back on the passenger’s side. The other officer removed Marshall from
the vehicle and searched the driver’s side. Marshall was standing at the rear of her vehicle.
¶8 Byrne walked back to defendant, stood behind him, and told defendant to spread his feet
apart. Defendant was still holding his wallet in his hand which was handcuffed behind his back.
Byrne asked defendant what was in his hand. Defendant replied, “[m]y wallet.” Byrne next asked
defendant what was in his back pocket. Defendant replied, “mail.” Byrne then asked defendant,
“[d]o you have anything on you that you shouldn’t have?” Defendant testified, “In the process, he
was patting my pocket, my front right pocket, and he was searching me.” At that point, Byrne
-4-
No. 1-19-1901
recovered a handgun loaded with ammunition from the back of defendant’s left hip. Defendant
confirmed Byrne had been searching him before Byrne recovered the gun. Defendant denied that
he said anything to Byrne before Byrne recovered the weapon. He further denied that he ever made
any statements about the gun. Defendant also denied that the officers questioned him about the
gun later that night.
¶9 On cross-examination, defendant acknowledged that when Byrne asked him, “[d]o you
have anything on you?” defendant replied, “I got a gun on my hip.” Defendant further
acknowledged he made that statement before Byrne recovered the gun from him.
¶ 10 The State moved for a directed finding arguing that defendant’s evidence did not establish
a fourth amendment violation. The State argued the police had a basis for the detention because
Marshall was driving without a driver’s license. It argued that once the vehicle was stopped, the
police had authority to remove all the passengers from the vehicle. The State further argued that it
was immaterial if defendant was handcuffed because such action does not turn a Terry stop into a
detention, but instead, is only one factor to consider. The State asserted that the only factor that
turns a traffic stop or Terry stop into an arrest is the length of the detention, and here, there was no
evidence regarding the length of the detention. The State argued that once defendant told Byrne
he had a gun on his hip, the officer had a basis to recover that gun. The trial court denied the State’s
motion for a directed finding.
¶ 11 The State called Byrne as a witness who testified that shortly after 11 p.m. on April 28,
2017, defendant was the front seat passenger in a vehicle stopped by police for a cracked
windshield. Byrne identified defendant in court. The driver of the vehicle was not able to produce
a driver’s license. Byrne asked defendant to exit the vehicle. The following colloquy then occurred:
-5-
No. 1-19-1901
“[PROSECUTOR:] Q At some point did you have interaction with the defendant? Did
you ask him if he had anything on him?
[BYRNE:] A Yes.
Q Did the defendant tell you that he had a gun on him?
A Yes.
Q Did you recover that gun?
A Yes.”
¶ 12 On cross-examination, Byrne testified that three officers were present for the traffic stop.
Byrne and another officer approached the passenger’s side of Marshall’s vehicle and a third officer
approached the driver’s side. Byrne asked defendant for his license or identification. Defendant
retrieved his identification card from his wallet and gave it to Byrne. After defendant exited
Marshall’s vehicle, Byrne asked him “if he possessed anything illegal.” Defendant told Byrne he
had a gun on his hip. Byrne recovered the weapon from the side of defendant’s hip. Byrne
confirmed that he did not see the weapon until after defendant told him he had a gun on him.
Defendant subsequently made statements to police regarding the gun. Defendant was arrested at
11:14 p.m.
¶ 13 In closing argument, defense counsel argued that defendant was not engaged in any illegal
activity when he was detained by police. Counsel argued that Byrne began searching defendant
before defendant made any kind of statement. The prosecutor objected, asserting that counsel had
misstated the evidence. The court overruled the objection and allowed counsel to continue with
his argument. Counsel argued that defendant testified that Byrne asked him if he had anything
illegal on him while Byrne was patting him down, and defendant stated that he had a gun while he
-6-
No. 1-19-1901
was being searched. Counsel noted that defendant was handcuffed and argued that Byrne
conducted a custodial search and custodial interrogation.
¶ 14 The State adopted its argument from its motion for a directed finding. The prosecutor
clarified, “[w]e are here to determine whether or not there was a Fourth Amendment violation[.]”
The State argued that the vehicle was lawfully stopped for a cracked windshield. It reiterated that
the police can order all the occupants out of a vehicle. The State argued there was no evidence
regarding the duration of the stop, but it appeared to have been “a minute or two.” The State pointed
out that both Byrne and defendant testified that Byrne asked defendant if he had a gun, defendant
said he did, and the gun was then recovered. The State argued the recovery of the gun was the
basis for defendant’s arrest and that the “two-minute detention” at the traffic stop was not a
custodial arrest. The State further argued, “at the last minute counsel brought up some aspects of
custodial interrogation. That’s not present at all and that forms a completely different kind of
analysis.”
¶ 15 In response, defense counsel argued that the police may order people out of a vehicle, but
they cannot handcuff the occupants of a vehicle. Counsel argued Byrne went beyond the scope of
a Terry stop, and that handcuffing defendant constituted a custodial detention.
¶ 16 The trial court found that the testimony from defendant and Byrne was not “terribly
inconsistent.” The court then stated:
“I am going to deny the motion for the following reasons: Based on the totality of
the circumstances, the court finds that once the officers determined that neither of the
occupants had a license and could legitimately drive the car, they have no basis but to get
them out of the car. How they get them out of the car doesn’t become dispositive for me.
-7-
No. 1-19-1901
Frankly at this time of the night, it’s not surprising to me that they would cuff somebody
in that quick a manner after they got them out of the car.
There’s a statement made. Exactly when the statement is made is up in the air, but
I don’t think that’s terribly dispositive because I think under the circumstances the officers
had a right to pat down both of the occupants of the car. So the gun would have been found
anyway even if the defendant hadn’t made the statement.”
¶ 17 Defendant filed a motion to reconsider the denial of his motion to suppress. Defendant
conceded that the traffic stop was lawful and that Byrne acted within his authority when he ordered
defendant out of the vehicle. Defendant argued that there was no testimony that justified Byrne’s
search of his person where Byrne did not testify that he feared for his safety. Defendant stated that
there was no testimony that he said or did anything to raise a suspicion that he was a threat to
Byrne. Defendant argued that, at the time of the search, he was handcuffed and could not
reasonably be considered a threat. Defendant further argued that his statement that he had a gun in
his waistband did not justify the search because his statement occurred during the illegal search
and was a product of that search. In addition, defendant argued that the principle of “inevitable
discovery” did not apply to this case because there was no evidence Byrne would have discovered
the gun other than by the illegal search.
¶ 18 In ruling on the motion, the trial court stated, “I will not deny that this case is close.” The
court noted that the vehicle was stopped for a valid traffic offense and that no one in the vehicle
had a driver’s license. The court stated that, had defendant had a license, it might have felt
differently about the search because the police could have turned the vehicle over to him. The court
stated that it was “a little murky” as to what happened after defendant exited the vehicle. It found,
-8-
No. 1-19-1901
however, that there was “no doubt” defendant stated he had a gun, and that statement was in
response to Byrne’s question about whether he had something on him. The court then stated:
“one of the things that complicates this case is the existence of the statute under the
Carry and Conceal Act which allows the police officers to ask people if they are carrying
a weapon. That seems to be pretty clear. It’s mentioned twice in the statute. So it doesn’t –
this case doesn’t rise to the level, from my standpoint, of where a Defendant is patted down
because of some suspicion necessarily; but it’s a combination of factors. First of all, it is
late at night. Secondly, there’s nobody on the street. Thirdly, the police are protecting
themselves. And it’s one thing to say that he is cuffed, okay, and he is not a threat; but
that’s an easy thing to say. That’s not necessarily the truth. Sometimes if people have
weapons on them and they’re cuffed, they can still reach the weapons. So I don’t think the
police acted unreasonably.”
¶ 19 In addition, the court found that another factor to consider was that the amount of time
involved in obtaining the gun was “very, very small.” Based on the fact that defendant was
legitimately asked out of the vehicle, the trial court denied defendant’s motion to reconsider.
¶ 20 The parties agreed to proceed by way of a stipulated bench trial. The State presented a
stipulation that the testimony presented at the motion to suppress hearing covered all the issues in
the case, and that testimony would be the same evidence the court would hear at trial. The State
presented the transcript from the suppression hearing as a stipulated exhibit. The State presented
an additional stipulation that it would introduce certified copies of defendant’s prior convictions
for attempted first degree murder and manufacture and delivery of cocaine to serve as the predicate
offenses for the armed habitual criminal offense.
-9-
No. 1-19-1901
¶ 21 The trial court found defendant guilty on all counts. In his motion for a new trial, defendant
argued that the trial court erred when it denied his motion to suppress evidence and motion to
reconsider that ruling. The trial court denied the posttrial motion. The court merged all counts for
UUWF and AUUW into the armed habitual criminal offense and sentenced defendant to the
mandatory minimum term of six years’ imprisonment.
¶ 22 On appeal, defendant contends the trial court erred when it denied his motion to suppress
evidence. Defendant argues that Byrne conducted an unlawful pat-down search because the officer
had no reasonable articulable suspicion that defendant was armed and dangerous. Defendant also
argues that his statement that he possessed a gun was made in response to an improper custodial
interrogation by Byrne before defendant was advised of his Miranda rights.
¶ 23 Our review of the trial court's ruling on a motion to suppress evidence presents questions
of both fact and law. People v. Richardson, 234 Ill. 2d 233, 251 (2009). The trial court's factual
findings are given great deference and will not be disturbed on review unless they are against the
manifest weight of the evidence. People v. Lindsey, 2020 IL 124289, ¶ 14. However, the court’s
ultimate ruling on the motion is a question of law which we review de novo. Id. At a hearing on a
motion to suppress, the trial court is responsible for determining the credibility of the witnesses,
weighing the evidence, and drawing reasonable inferences therefrom. People v. Ballard, 206 Ill.
2d 151, 162 (2002). The court’s factual findings are against the manifest weight of the evidence
only where the opposite conclusion is apparent, or where the findings are arbitrary, unreasonable,
or not based on the evidence. People v. Aljohani, 2021 IL App (1st) 190692, ¶ 37. This court “may
affirm the trial court’s ruling on a suppression motion ‘on any basis appearing in the record,
- 10 -
No. 1-19-1901
whether or not the trial court relied on that basis or its reasoning was correct.’ ” Id. ¶ 38 (quoting
People v. Daniel, 2013 IL App (1st) 111876, ¶ 37).
¶ 24 On a motion to suppress evidence, the burden of proving that the search and seizure were
unlawful rests with the defendant. 725 ILCS 5/114-12(b) (West 2016); People v. Cregan, 2014 IL
113600, ¶ 23. “If the defendant makes a prima facie showing that the evidence was obtained in an
illegal search or seizure, the burden shifts to the State to provide evidence to counter the
defendant’s prima facie case.” Cregan, 2014 IL 113600, ¶ 23. Ultimately, however, the burden of
proof remains with the defendant. Id.¶ 25 Initially, defendant states that he is not challenging the validity of the traffic stop or Byrne’s
order to exit the vehicle. He argues, however, that Byrne conducted an unlawful pat-down search
because Byrne had no reasonable articulable suspicion that defendant was armed and dangerous.
Defendant argues that Byrne did not testify about any facts regarding defendant’s conduct that
could have reasonably created a fear or threat of violence that justified the pat-down search. He
asserts that the trial court found Byrne searched defendant based on a concern for officer safety,
but the evidence did not support that finding. Defendant notes that Byrne testified that he did not
see the gun until defendant told him about it. Defendant argues, however, that Byrne began
searching him before he asked if defendant had any contraband on him and before defendant stated
that he had a gun.
¶ 26 The State responds that the trial court properly denied defendant’s motion to suppress
because the evidence showed that the pat-down and recovery of the gun occurred after defendant
told Byrne he had a gun on his hip. Relying on People v. Gonzalez, 184 Ill. 2d 402 (1998), the
State argues that, once defendant stated that he possessed a firearm, Byrne had the authority to
- 11 -
No. 1-19-1901
search defendant and recover that firearm based on a concern for officer safety. The State further
argues that, even if defendant had not stated that he possessed a weapon, the search would have
been lawful based on the totality of the circumstances, including that the traffic stop occurred late
at night in a deserted area with a small child inside the vehicle, and both the driver and defendant
were outside of the vehicle because neither of them possessed a driver’s license. In addition, the
State asserts that the legality of a pat-down search is evaluated under an objective standard, and
Byrne’s subjective belief regarding the safety of the situation is only one factor that may be
considered when evaluating the search.
¶ 27 The fourth amendment of the United States Constitution and the Illinois Constitution
protect citizens from unreasonable searches and seizures in their homes, effects, and persons. U.S.
Const., amend. IV; Ill. Const. 1970, art. I, § 6. Reasonableness is measured with an objective
standard by analyzing the totality of the circumstances. People v. Moss, 217 Ill. 2d 511, 518 (2005).
Generally, to be deemed a reasonable search and seizure under the fourth amendment, police must
obtain a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010).
However, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized an exception to the
warrant requirement allowing police officers to briefly stop suspicious individuals to make
reasonable inquiries to confirm or dispel their suspicions of criminal activity. The reasonableness
of a traffic stop and detention of the vehicle’s occupants are reviewed under the Terry principles.
People v. Jones, 215 Ill. 2d 261, 270 (2005).
¶ 28 Whether a police officer can search an occupant of a vehicle is a separate consideration
from the legality of the vehicle stop that is also reviewed for reasonableness under the Terry
principles. Gonzalez, 184 Ill. 2d at 421. The Terry Court held that a police officer may conduct a
- 12 -
No. 1-19-1901
pat-down search of a person he is investigating at close range to determine if that person is carrying
a weapon where the officer justifiably believes the person is armed and dangerous. People v.
Sorenson, 196 Ill. 2d 425, 432 (2001). The sole justification for a pat-down search under Terry is
for the protection of police and others in the area, not to discover evidence. People v. Flowers, 179
Ill. 2d 257, 263 (1997). A search that exceeds the boundaries necessary for determining if a suspect
is armed is unreasonable under Terry, and any evidence recovered during such a search will be
suppressed. Sorenson, 196 Ill. 2d at 432. Although the reasonableness of the pat-down search is
assessed under an objective standard, the police officer’s subjective belief regarding the safety of
the situation is one of the factors that may be considered among the totality of the circumstances
known to the officer at the time of the search. Gonzalez, 184 Ill. 2d at 422.
¶ 29 In determining whether a pat-down search is reasonable, an officer does not need to be
absolutely certain the person is armed; instead, the question is whether, under the circumstances,
a reasonably prudent person would believe that his safety or that of others was in danger. People
v. Colyar, 2013 IL 111835 ¶ 36 (citing Terry, 392 U.S. at 27). In each case, consideration must be
given to the specific reasonable inferences that the officer is entitled to draw from the facts in light
of his experience. Sorenson, 196 Ill. 2d at 433. The limitations of a search in any particular case
depends upon the factual circumstances of that case. Id. at 440 (citing Terry, 392 U.S. at 29). When
an officer asks a person during a traffic stop whether he is in possession of a weapon and receives
an affirmative response, it is reasonable for the officer to pat down the person to uncover the
weapon. Gonzalez, 184 Ill. 2d at 423.
¶ 30 Here, the record reveals that Officer Byrne recovered the weapon from defendant after
defendant told the officer he had a gun on his hip. Byrne testified that after defendant had exited
- 13 -
No. 1-19-1901
the vehicle, Byrne asked defendant “if he possessed anything illegal.” Defendant told Byrne he
had a gun on his hip. Byrne then recovered the weapon from the side of defendant’s hip. Byrne
testified that he did not see the weapon until after defendant told him he had a gun on him.
Defendant also testified that Byrne asked him, “[d]o you have anything on you that you shouldn’t
have?” Defendant acknowledged that he replied, “I got a gun on my hip.” Defendant also
acknowledged he made that statement before Byrne recovered the gun from him. The trial court
found there was “no doubt” defendant stated he had a gun, and that defendant’s statement was
made in response to Byrne’s question about whether he had something on him. The record shows
that the trial court’s finding was not against the manifest weight of the evidence. Aljohani, 2021
IL App (1st) 190692, ¶ 37. Moreover, when defendant told Byrne he was in possession of a gun,
the officer then had the authority to pat down defendant and recover that weapon. Gonzalez, 184
Ill. 2d at 423. Based on this record, we find that Byrne’s recovery of the firearm was not the result
of an illegal pat-down search. Accordingly, the trial court’s denial of defendant’s motion to
suppress evidence was proper.
¶ 31 Defendant next contends the trial court erred when it denied his motion to suppress because
his statement to Byrne that he possessed a gun was made in response to an improper custodial
interrogation by the officer before defendant was advised of his Miranda rights. The State responds
that defendant forfeited this issue because it was not raised in his motion to suppress evidence, his
motion to reconsider the trial court’s denial of that motion, or his motion for a new trial.
Alternatively, the State argues that Miranda warnings were not required under the circumstances
in this case which involved general on-the-scene roadside questioning during a traffic stop rather
than a custodial interrogation. Gonzalez, 184 Ill. 2d at 423.
- 14 -
No. 1-19-1901
¶ 32 In reply, defendant argues the issue is not forfeited because he raised the admissibility of
his statement several times in the trial court, including: (1) when counsel argued at the suppression
hearing that Byrne’s pat down was “a custodial search and a custodial interrogation;” (2) in his
written motion to reconsider when he argued that the State could not use his statement that he had
a gun in his waistband to justify the search; and (3) in his motion for a new trial when he argued
that his statement should have been excluded from trial. Based on these assertions, defendant
claims the issue was properly raised in the trial court, “regardless of the specific arguments he
made below.” Alternatively, defendant argues that even if the issue is forfeited, this court may still
consider it because forfeiture principles are binding on the parties, not the reviewing court.
Defendant also asserts, without argument, that this court may consider the issue as plain error.
¶ 33 The record indicates that defendant never raised a Miranda challenge before the trial court.
Defendant has raised this claim for the first time in this appeal. This court has previously held that
where a defendant fails to raise an allegation in his written motion to suppress and does not raise
the issue in his posttrial motion, the issue is waived. See People v. Williams, 272 Ill. App. 3d 868,
876 (1995); People v. Cleesen, 177 Ill. App. 3d 103, 114 (1988).
¶ 34 In analyzing the contents of a motion to suppress, the Fourth District of this court stated:
“ ‘A motion to suppress is, in effect, a pleading to the extent that it frames the issues
to be determined in a pretrial hearing on the motion. The fundamental role of a pleading is
to give an opposing party notice of the pleader’s position concerning the facts and law so
that the opposing party can begin to prepare his defense. A pleading thus both defines and
limits the areas of consideration at a trial or other evidentiary hearing ***, by enabling the
- 15 -
No. 1-19-1901
court to determine the relevance of offered evidence.’ ” People v. Ramirez, 2013 IL App
(4th) 121153, ¶ 60 (quoting State v. Johnson, 519 P.2d 1053, 1057 (Or. Ct. App. 1974)).
¶ 35 Our supreme court has held that where a defendant raises arguments on appeal that are
distinct from the arguments he raised in his motion to suppress before the trial court, the defendant
has not adequately preserved his claims for review. People v. Hughes, 2015 IL 117242, ¶ 45. In
Hughes, the defendant, who was charged with and ultimately convicted of first degree murder,
filed a motion to suppress claiming that his confession was involuntary. Id. at ¶¶ 1-2. Before the
trial court, the defendant argued that his statements were involuntary because the police questioned
him off camera and without advising him of his Miranda rights, and due to physical coercion from
handcuffs being kept on him for an excessively long time. Id. at ¶ 2. The trial court denied his
pretrial motion to suppress and denied his posttrial motion where the defendant raised the issue
again. Id. On appeal, the defendant argued that his confession was involuntary and should have
been suppressed for reasons different than what he argued before the trial court, including his age,
educational level, sleep and food deprivation, prior substance abuse, deceptive conduct by police,
and lack of experience with the criminal justice system. Id. at ¶ 25. The State argued that the
defendant waived the issue for appeal because he did not present these reasons for suppression to
the trial court. Id. at ¶ 26. The appellate court, with one justice dissenting, found that the issue was
not forfeited because he had raised the issue of voluntariness in his posttrial motion. The court
concluded that the confession should have been suppressed and reversed and remanded for a new
trial. Id. at ¶ 27.
¶ 36 On appeal, the supreme court found that the defendant’s reasons for suppression in the trial
and appellate courts were almost entirely distinct from one another. Id. at ¶ 40. The court noted
- 16 -
No. 1-19-1901
that the defendant presented no evidence or arguments to the trial court for the claims he raised on
appeal. Id. at ¶ 41. The court therefore found that when the defendant failed to raise his claims in
the trial court, he deprived the State of its opportunity to present evidence and arguments
challenging those claims. Id. at ¶ 46. The court further found that the defendant also deprived the
trial court of the opportunity to decide the issue on those bases. Id. The court concluded that the
defendant did not adequately preserve his claims for appeal, and that the trial court did not err
when it denied the defendant’s motion to suppress. Id. at ¶ 47.
¶ 37 Similar to Hughes, in this case, defendant has raised an issue on appeal that was not raised
in his motion to suppress and not litigated before the trial court. Defendant argues that his statement
that he had a gun on his hip was inadmissible because it was made in response to an illegal custodial
interrogation by Byrne prior to being advised of his Miranda rights. Defendant argues that Byrne
forcibly removed him from the vehicle, immediately handcuffed him with no articulable basis for
doing so, did not advise him of his Miranda rights, and asked him a question he should have known
was reasonably likely to illicit an incriminating response.
¶ 38 Because the Miranda issue was not litigated below, the trial court never had the opportunity
to address defendant’s argument or rule on the issue. The record shows that when defense counsel
orally amended the motion at the suppression hearing by adding the words “my statement” to the
prayer for relief, the prosecutor stated, “I believe it’s not a Fifth Amendment issue. Still falls under
his Fourth Amendment claims in the body of the motion.” Defense counsel did not disagree with
this statement. In closing, the prosecutor argued, “[w]e are here to determine whether or not there
was a Fourth Amendment violation[.]” In response to counsel’s closing remark that Byrne had
conducted a custodial search and custodial interrogation, the prosecutor argued, “at the last minute
- 17 -
No. 1-19-1901
counsel brought up some aspects of custodial interrogation. That’s not present at all and that forms
a completely different kind of analysis.” We therefore find defendant failed to preserve the issue
for appeal, and it is forfeited. Hughes, 2015 IL 117242, ¶ 47.
¶ 39 Defendant asserts, in two sentences, that admission of his statement obtained during a
custodial interrogation prior to being advised of his Miranda rights constitutes plain error, and
therefore, this court may review the issue even if it is forfeited. He makes no further plain error
argument.
¶ 40 Our supreme court has repeatedly held that “when a defendant fails to present an argument
on how either of the two prongs of the plain-error doctrine is satisfied, he forfeits plain error
review.” People v. Hillier, 237 Ill. 2d 539, 545-46 (2010) (citing People v. Nieves, 192 Ill. 2d 487,
502-03 (2000)). The court explained that “[a] defendant who fails to argue for plain-error review
obviously cannot meet his burden of persuasion.” Hillier, 237 Ill. 2d at 545. The court further
advised that where the appellate court finds that the defendant forfeited the issue, it “must hold the
defendant to his burden of demonstrating plain error.” Id. at 549.
¶ 41 Here, defendant has presented no argument on how either prong of the plain error doctrine
is satisfied. Defendant’s conclusory statement that plain error applies fails to satisfy his burden of
persuasion. We therefore honor defendant’s forfeiture of the issue.
¶ 42 Based on this record, we conclude that Byrne’s recovery of the firearm after defendant
stated that he had a gun on his hip was reasonable and lawful. Accordingly, the trial court’s denial
of defendant’s motion to suppress evidence was proper.
¶ 43 For these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
- 18 -