No. 2-17-0932 Order filed June 12, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-599 ) ARAMIS HATCH, ) Honorable ) James C. Hallock, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.

ORDER

¶1 Held: Trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence where police lacked probable cause to believe that defendant’s possession of a firearm was illegal. Therefore, we reverse outright defendant’s convictions of aggravated unlawful use of a weapon.

¶2 Following a bench trial, defendant Aramis Hatch, was convicted of two counts of

aggravated unlawful use of a weapon (AUUW) for possessing a concealed and loaded firearm

while not on his land or in his home (or that of another person as an invitee) without a valid

concealed carry license (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014) or a valid Firearm

Owner’s Identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014). Defendant

was sentenced to 180 days in jail and 24 months’ probation. Defendant appeals, arguing that

(1) his trial counsel was ineffective for failing to move to quash his arrest and suppress evidence

because the responding officers lacked probable cause to believe that his possession of the firearm

was illegal at the time he was arrested; (2) he was either exempt from the Firearm Owner’s

Identification Act and the Firearm Concealed Carry Act or the statutes were unconstitutional as

applied to him; and (3) one of his convictions should be vacated based on the one-act, one-crime

doctrine. We agree with defendant that his trial counsel was ineffective for not moving to quash

his arrest and suppress the evidence, and we therefore reverse his convictions outright.

¶3 I. BACKGROUND

¶4 On August 18, 2015, defendant was charged by indictment with unlawful possession of

firearm ammunition and two counts of AUUW. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5); (a)(1),

(a)(3)(C) (West 2014). The two AUUW counts were based on defendant possessing the same

firearm under different theories of culpability: not having a license under the Firearm Concealed

Carry Act and not having a valid FOID card. The State nolle prossed the count for unlawful

possession of firearm ammunition, and the case proceeded on the two AUUW counts.

¶5 Prior to trial, the State filed a motion in limine seeking to bar any evidence or argument

regarding defendant’s residency in the state of Georgia, explicitly anticipating that defendant

would “argue that [he] is allowed to carry a firearm in Georgia without a license” such that his

possession of a firearm in Illinois was lawful. Relying on the First District’s holding in People v.

Wiggins,

, the State argued that defendant’s Georgia residency was

irrelevant unless that state had issued him a formal, physical license. It argued that, because

defendant did not have a formal license from the state of Georgia to possess a firearm, he did not

fit the exemption in the Firearm Owners Identification Card Act (FOID Card Act) applicable to

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“[n]onresidents who are currently licensed or registered to possess a firearm in their resident state.”

430 ILCS 65/2(b)(10) (West 2014). At hearing on the motion in limine, defense counsel conceded

that Wiggins was directly on point concerning defendant’s alleged violation of the FOID Card Act,

but argued that it should not be followed. Instead, counsel argued that the exception in the FOID

Card Act for nonresidents should be read more broadly to include states that allow their residents

to possess a firearm without first being licensed or registered. Defense counsel further argued that

Wiggins had no bearing on defendant’s charge relating to violation the Firearm Concealed Carry

Act because that case did not address concealed carry licenses.

¶6 Stating that Wiggins was controlling authority, the circuit court granted the State’s motion

in limine and barred defendant from “introducing the Georgia law and introducing the defense of

‘[i]t was okay in Georgia, so it’s okay in Illinois.” In announcing its ruling, the trial court

commented that “[i]t’s a mystery to this court” how “these people in the [First] District could have

reconciled this to the Constitution.” The judge stated that, nevertheless, “I think [Wiggins] is

controlling on me. I think I have to follow this.”

¶7 A bench trial was held on April 3, 2017. The State’s evidence demonstrated that shortly

after 9:30 p.m. on April 11, 2015, Elgin police officer Greg Lynch was dispatched to an address

on Bartlett Place in Elgin in response to a 911 call regarding a “potential stolen vehicle.” The

dispatch did not mention a firearm. When he arrived in the area, he parked his squad car on a side

street and walked to Bartlett Place. He began looking for the person who called 911. He came

upon a vehicle parked at a stop sign, and he saw a female in the driver’s seat talking on a cell

phone. He later identified her as Rebecca Luellen. Officer Lynch noticed that Luellen was looking

at him, and he heard her say into the cell phone, “[y]es yes, there is an officer here. Yes, he’s

approaching me now.” He assumed that Luellen had made the 911 call. As he approached Luellen

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to speak about the 911 call, he did not see anything suspicious or any criminal acts being

committed.

¶8 Officer Lisandro Ramirez arrived at the scene while Officer Lynch was speaking with

Luellen. He noticed that there was a front-seat passenger in the vehicle, so he walked around the

rear of the vehicle and approached the passenger side. He shined his flashlight into car, knocked

on the window, and instructed the passenger, who was later identified as defendant, to roll down

the window. As defendant moved his right hand from his lap to roll down the window, Officer

Ramirez “noticed the pistol grip of a firearm—possible firearm” protruding from the right-side

pocket of defendant’s zip-up jacket. Because defendant was seated, the pockets of his jacket were

near his lap, and so “the pistol was sitting right on his lap.”

¶9 Officer Ramirez immediately drew his sidearm for his own safety and pointed it at

defendant, and he told Officer Lynch that there was a gun inside the vehicle. Officer Lynch also

drew his sidearm, and he pointed it at Luellen. Officer Ramirez ordered defendant to not touch

the gun, and defendant put his hands up. Defendant then put both of his hands out the car window

at Officer Ramirez’s direction.

¶ 10 After Officer Lynch secured Luellen with the help of a sergeant that had also arrived on

the scene, he went to the passenger side of the vehicle to assist Officer Ramirez. He pointed his

sidearm at defendant while Officer Ramirez instructed him to exit the vehicle. After defendant

exited, Officer Ramirez secured his own sidearm and handcuffed defendant while Officer Lynch

maintained defendant at gunpoint. Officer Lynch removed a firearm from the front right pocket

of the jacket defendant was wearing, and defendant was placed in the backseat of Officer Lynch’s

squad car. Defendant did not resist the officers, and he fully complied with their commands. The

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firearm recovered by Officer Lynch was a semiautomatic .45 caliber Ruger pistol. He unloaded

seven rounds of ammunition from the gun and secured it in the trunk of one of the squad cars.

¶ 11 Officer Lynch then transported defendant to the Elgin police department. While defendant

was in the squad car, he said to officer Lynch: “[y]ou caught the right n***. I stand my ground.

I’m from a place where we stand our ground. I’m a thug.” Concerning the firearm, defendant

stated: “I gave it to you because that’s all you got. You didn’t take it from me. I gave it to you.”

Finally, he stated that “[e]veryone else out there has a gun. It’s bullshit. The law says I can have

one. It’s mine. The pistol’s mine.” When defendant spoke, Officer Lynch did not advise him of

his Miranda rights.

¶ 12 At the time of defendant’s arrest, neither officer had any knowledge regarding whether

defendant had a FOID Card, nor did they have any knowledge regarding whether defendant legally

possessed the firearm. Neither a FOID card nor a license under the Firearm Concealed Carry Act

was recovered from defendant.

¶ 13 The defense did not present any evidence or witnesses, but instead presented written

proffers of testimony and arguments it would have presented had the circuit court denied the

State’s motion in limine. According to the proffers, defendant would have testified that on April

11, 2015, he was a Georgia resident and was visiting friends and family in Illinois. He was in

Illinois longer than planned because he had a case pending in Cook County, and a condition of his

bond prohibited him from leaving the state. While he was in Illinois, he stayed with friends, family

members, and even in his car. Defendant purchased the firearm from Luellen and created a bill of

sale on January 15, 2015. He was not prohibited from owning or possessing a firearm under federal

law. He was familiar with Georgia law under which he was eligible to carry a firearm in public

without a physical license. He was also aware of the exception to the FOID Card Act allowing

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non-residents to possess a firearm if they are currently licensed or registered to possess a firearm

in their home state. Police recovered a current Georgia identification card from him when he was

arrested. Defendant’s Georgia identification card and Georgia driver’s license were attached to

the proffer. Defendant would have argued at trial that he fell within the exception to the FOID

Card Act for nonresidents who are currently licensed or registered to possess a firearm in their

resident state because he is allowed to possess a firearm without a license under Georgia law such

that “Georgia permitted and ‘licensed’ him to possess a firearm.”

¶ 14 During closing argument, defense counsel argued, inter alia, that defendant’s possession

of the firearm was simply an exercise of his second amendment rights. Counsel also highlighted

Officer Lynch’s testimony that he did not see any crimes being committed while he spoke to

Luellen, and counsel argued that there was “no indication that [defendant] was using this gun in

any criminal purpose. *** [A]ll [the officers] saw was that [defendant] had a gun.” She argued

that, under the second amendment, an individual may possess a firearm both inside and outside of

the home. She also stressed the officers’ testimony that defendant fully complied with all their

commands.

¶ 15 On April 3, 2017, the court found defendant guilty on both AUUW counts. Defendant

thereafter moved for a new trial arguing, inter alia, that the court erred in granting the State’s

motion in limine and barring defendant from presenting evidence related to his Georgia residency

and Georgia gun laws, as well as erred in denying his motion for a directed verdict because the

evidence showed he was exercising his second amendment right to possess a firearm for self-

defense outside the home. On October 5, 2017, the circuit court entered a written order denying

defendant’s motion for a new trial. In so ruling, the court found that defendant “was not licensed

to carry a firearm in Georgia inasmuch as Georgia does not have a system for licensing residents

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to carry firearms. *** Georgia allows [defendant] to possess a firearm without a license, he does

not possess a license for Illinois to recognize” and, based on Wiggins, defendant was not exempt

under the FOID Card Act. Defendant was sentenced to 180 days in jail and 24 months’ probation.

¶ 16 Defendant timely appealed.

¶ 17 II. ANALYSIS

¶ 18 Defendant argues on appeal that (1) his trial counsel was ineffective for failing to file a

motion to quash his arrest and suppress the firearm and his statements to Officer Lynch because

the police officers lacked probable cause to believe that his possession of the firearm was illegal

at the time of his arrest; (2) he was statutorily exempt from the FOID Card Act and the Firearm

Concealed Carry Act, and that a narrower interpretation of the statutory exemptions would be

unconstitutional as applied to him; and (3) in the alternative, one of defendant’s AUUW

convictions should be vacated under one-act, one-crime principles because both counts were based

on the possession of the same firearm. We address only the first issue, which is meritorious and

dispositive.

¶ 19 Defendant argues that his trial counsel was ineffective for failing to file a motion to quash

his arrest and suppress evidence, which he asserts would have been successful. He asserts that he

was arrested without probable cause based only on his possession of a firearm, which he stresses

is not illegal per se following the decision of our supreme court in People v. Aguilar,

, and the officers had no knowledge regarding whether his possession was illegal at the

time of the arrest. Defendant maintains that, rather than investigate whether his possession of the

firearm was lawful, the officers immediately arrested him upon the bare observation of the firearm

without asking him to produce a concealed carry license or even asking him to identify himself.

He argues that, absent probable cause, the arrest was unlawful such that all the evidence, including

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the firearm and the statements he made to Officer Lynch during his transportation to the police

station, must be suppressed. Defendant maintains that the motion would have been granted had

his counsel filed one, and there was a reasonable probability that the outcome of the trial would

have been different.

¶ 20 In response, the State argues that defense counsel’s decision to not file a motion to quash

arrest and suppress evidence was sound trial strategy because the actions of the police officers

were “completely justified and lawful” because they had a reasonable apprehension of danger

when they saw a gun protruding from defendant’s jacket pocket. 1 According to the State, “both

officers’ actions were guided solely by a concern for their safety.” The State relies exclusively on

People v. Colyar,

, which it argues is dispositive of the issue. It also asserts that

the concern the officers had for their own safety was further justified because the record suggests

there was a bullet hole in the windshield of the vehicle defendant was in. According to the State,

the motion would have been futile.

¶ 21 We evaluate claims of ineffective assistance of counsel under the familiar standards set

forth by the United States Supreme Court in Strickland v. Washington,

(1984) and

adopted in Illinois by People v. Albanese,

(1984). To succeed on a claim

for ineffective assistance of counsel, a defendant must satisfy two prongs, namely that: (1)

counsel’s performance fell below an objective standard of reasonableness; and (2) the deficient

1 The State makes no argument that the record is inadequate to evaluate defendant’s claim.

See People v. Henderson,

(noting that a collateral attack may be a more

appropriate mechanism for challenging the effectiveness of trial counsel where the record on

appeal is incomplete to evaluate the claim).

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performance resulted in prejudice. People v. Manning,

(2011). Relevant to

the first prong, courts have ruled that the decision of whether to file a motion to suppress is

generally a matter of trial strategy that is afforded great deference. People v. White,

(2006). In the context of demonstrating prejudice under the second Strickland prong stemming

from trial counsel’s failure to file a motion to suppress, “the defendant must demonstrate that the

unargued suppression motion is meritorious, and that a reasonable probability exists that the trial

outcome would have been different had the evidence been suppressed.” People v. Henderson,

. A “meritorious” motion to suppress is one that “would have succeeded.”

Id. ¶ 12. A reasonable probability that the trial outcome would have been different occurs when

the “probability is sufficient to undermine confidence in the outcome.” People v. Simpson,

. Because the ineffective assistance of counsel claim was not raised in the trial

court below, our review is de novo. People v. Lofton,

. De novo

review is also appropriate because the underlying facts relevant to defendant’s ineffective

assistance of counsel claim are undisputed. See People v. Falco,

.

¶ 22 We begin by considering the merits of the unargued motion to quash arrest and suppress

evidence. The fourth amendment to the United States Constitution and article 1, section 6 of the

Illinois Constitution protect citizens against unreasonable searches and seizures. U.S. Const.,

amend. IV; Ill. Const. 1970 art. I, § 6; People v. Bartelt,

(2011). An individual

is entitled to be free from unreasonable government intrusion wherever he or she has a reasonable

expectation of privacy. Terry v. Ohio,

(1968). The parameters of this right are

shaped by the context in which it is asserted because the Constitution does not prohibit all searches

and seizures, but rather, only those that are unreasonable. People v. Gherna,

(2003). “[T]he ‘essential purpose’ of the fourth amendment is to impose a standard of

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reasonableness upon the exercise of discretion by government officials, including law enforcement

officers, to safeguard the privacy and security of individuals against arbitrary invasions.” People

v. Jones,

(2005) (quoting Delaware v. Prouse,

(1979)).

¶ 23 It is generally understood that there are three tiers of police-citizen encounters that do not

constitute an unreasonable seizure. Gherna,

. The first tier involves the arrest of

a citizen, which must be supported by probable cause. To establish probable cause for an arrest,

the totality of circumstances known to the arresting officers at the time of the arrest must be such

that a reasonably prudent person would believe that the suspect is committing or has committed a

crime. People v. Downey,

(1990). The second tier of encounters between

citizens and police occurs during a Terry stop, where law enforcement may conduct a brief,

investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal

activity that amounts to more than a mere “hunch.” Gherna,

. The last tier of

police-citizen encounters involves those that are consensual. These encounters do not implicate

the fourth amendment because they involve no coercion or detention.

¶ 24 Because defendant was subjected to a warrantless arrest, the arrest necessarily must have

been supported by probable cause so as not to be unreasonable under the fourth amendment. See

People v. Hopkins,

(2005) (noting that an arrest without either a warrant

or probable cause violates the fourth amendment). In evaluating whether the officer had probable

cause to arrest an individual, the officer’s factual knowledge, based on his or her prior law

enforcement experience, is relevant. People v. Tisler,

(1984). Although the

standard of probable cause is more demanding than the reasonable suspicion of criminal activity

needed to initiate an investigative Terry stop, it “ ‘does not deal with hard certainties, but with

probabilities.’ ” Illinois v. Gates,

(1983) (quoting United States v. Cortez, 449

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U.S. 441, 418 (1981). “Probable cause is a fluid concept—turning on the assessment of

probabilities in particular contexts—not readily, or even usefully, reduced to a neat set of legal

rules.”

.

¶ 25 In reviewing the propriety of an arrest, courts must consider the totality of the

circumstances and the facts known to the police at the time of the arrest, and review should not be

tainted by hindsight. People v. Aguilar,

(1997). The facts known to the

officer at the time of arrest must be sufficient to lead a reasonably cautious person to believe that

the arrestee has committed a crime. Hopkins, 235 Ill. 2d at 472. The analysis requires an objective

evaluation of the police conduct and does not hinge upon the subjective perception of the officer.

People v. Luedemann,

(2006).

¶ 26 Defendant was arrested on April 11, 2015, after People v. Aguilar,

, was

decided. There, our supreme court struck down as unconstitutional the section of the AUUW that

categorically banned the possession of an operable firearm outside the home. Id. ¶¶ 20-22. In so

holding, the court noted that in District of Columbia v. Heller,

(2008) and McDonald

v. City of Chicago,

(2010), the United States Supreme Court signaled that “the second

amendment right to keep and bear arms extends beyond the home.” Aguilar,

,

¶ 20. It also noted the Heller court’s statement that individual self-defense was “the central

component” of the second amendment. Explicitly relying on and adopting the Seventh Circuit’s

reasoning in Moore v. Madigan,

(7th Cir. 2012), our supreme court stated that it

would “make little sense to restrict that right to the home” because “confrontations are not limited

to the home.” Aguilar,

(quoting Heller,

). The court in

Aguilar made clear, however, that the right to possess a firearm for self-defense outside the home

is not unlimited, and it is subject to meaningful regulation. Id. ¶ 21. The FOID Card Act and

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Firearm Concealed Carry Act are examples of such meaningful regulation, and defendant in the

instant matter was convicted of violating both acts. Nevertheless, on the date of defendant’s arrest,

possession of a firearm outside the home was not, in and of itself, a crime. It therefore follows

that the mere observance of a firearm on an individual’s person, without more, is insufficient to

establish probable cause. Indeed, the State concedes in its brief that “there is nothing inherently

criminal in possessing a firearm.” As the First District recently observed, “under the current legal

landscape, police cannot simply assume a person who possesses a firearm outside the home is

involved in criminal activity.” People v. Markeese Thomas,

.

¶ 27 We agree with defendant that his arrest was unsupported by probable cause because the

totality of the facts and circumstances known to the officers at the time of defendant’s arrest, as

established by their trial testimony, did not suggest that defendant had committed or was

committing a crime. Officers Ramirez and Lynch initially approached the stopped vehicle

defendant was seated in because the woman in the driver’s seat, Luellen, had called 911 regarding

a “potential stolen vehicle.” No mention of a firearm was made in the dispatch. Officer Ramirez

arrived at the scene while Officer Lynch was speaking with Luellen, and he noted that someone

was in the front passenger seat of the vehicle. He approached the passenger side, shined his

flashlight into the car, knocked on the passenger-side window, and told defendant to roll it down.

In compliance with the instruction, defendant rolled down the window and, in doing so, Officer

Ramirez saw the black handle of a “possible firearm” sticking out from the right pocket of the

jacket defendant was wearing. Officer Ramirez immediately drew his sidearm, held defendant at

gunpoint, and had defendant put his hands out the window. Once Officer Lynch was free to assist,

Officer Ramirez ordered defendant to exit the car and placed him in handcuffs while Officer Lynch

seized the firearm. Defendant was then put in the backseat of Officer Lynch’s squad car and

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transported to the Elgin police station. These actions plainly constituted an arrest or seizure under

the fourth amendment. See People v Reed,

(1998) (noting that “[a]n

arrest occurs when a person’s freedom of movement has been restrained by means of physical

force or show of authority”), and People v. Wallace,

(1998) (“[t]he test for

determining whether a suspect has been arrested is whether, in light of the surrounding

circumstances, a reasonable, innocent person would have considered himself free to leave”).

¶ 28 Defendant asserts that officer Ramirez did not ask him any questions to ascertain whether

or not his possession of the firearm was lawful, but instead immediately drew his own firearm,

ordered defendant out of the car, handcuffed him, placed him in a squad car, and drove him to the

police station, thus completing the arrest. He points out that both officers testified that they had

no knowledge regarding whether defendant legally possessed the firearm at the time of the arrest,

and the State does not dispute defendant’s characterization of the officers’ testimony in its brief.

The following exchange occurred at trial during Officer Ramirez’s testimony:

“Q. [By defense counsel]: Officer Ramirez, that the [sic] point you have no

knowledge whether Mr. Ramirez [sic] has [a] FOID card or not?

A. [Officer Ramirez]: I did not have any knowledge whether Mr. Hatch had a FOID

card or not.

Q. And you did not have any knowledge whether Mr. Hatch legally possessed the

gun or not, correct?

A. I did not.”

Officer Lynch similarly testified, as follows:

“Q. [By defense counsel]: At the time, you did not have any knowledge whether

Mr. Hatch, the passenger, legally was—has that gun, correct?

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A. [Officer Lynch]: Correct.

Q. And as an officer, you’re aware that citizens have second amendment rights,

correct?

A. Correct.

***

Q. So, [a] citizen can have a gun in their car, correct?

A. Correct.”

¶ 29 The record demonstrates that defendant was immediately arrested solely upon the officers’

observation that he was in possession of a firearm outside the home which, in the wake of Aguilar,

is not per se unlawful. Indeed, the Firearm Concealed Carry Act, which was in effect at the time

of defendant’s arrest, specifically allows a license holder to “keep or carry a loaded or unloaded

firearm on or about his or her person within a vehicle.” 430 ILCS 66/10(c)(2) (West 2014).

Moreover, nothing in defendant’s conduct during his interaction with the officers gave rise to

probable cause or suggested that defendant may have possessed the firearm illegally because both

officers testified that defendant fully complied with all their commands. Cf. Markeese Thomas,

(police, who were patrolling the area due to recent gang

activity, had probable cause to believe the defendant illegally possessed a gun where, upon seeing

the officers, he handed the gun he was holding to his friend, and immediately fled into an upstairs

apartment unit and locked the door); People v. Lawrence,

(police

had probable cause to believe the defendant did not have a FOID card because he gave a false

exculpatory statement when he stated the gun was not a gun, but a lighter); People v. Hood,

(police had probable cause to arrest where, as an officer approached,

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the defendant put a gun in a black plastic bag and threw it into the backseat of the car, and he later

admitted he did not have a concealed carry license.

¶ 30 Glaringly absent from the State’s brief is any argument that the police had probable cause

to arrest defendant. Except for the possession of the gun itself, the State identifies no facts or

circumstances that were known to the officers at the time of the arrest that could give rise to

probable cause to believe defendant’s possession of the gun was unlawful or that he had committed

or was about to commit a crime. Instead, the State maintains that the actions of the police

officers—including their arrest of defendant—were “completely lawful and justified” because the

officers had a reasonable apprehension of danger when they saw a firearm in defendant’s front

jacket pocket. The State relies exclusively on a pre-Aguilar case, Colyar,

, which

it asserts “controls the outcome of this case.”

¶ 31 In Colyar, two police officers approached a vehicle containing three individuals that was

parked in a motel parking lot entrance. Id. ¶¶ 6-8. One of the officers asked the driver, Colyar,

why he was blocking the entrance, and he replied that he was picking someone up. Id. ¶ 8. The

other officer shined his flashlight into the car and saw a plastic bag containing a bullet. Id. They

ordered the occupants out of the car, handcuffed them, and recovered the plastic bag, which

contained five rounds of ammunition. Id. ¶ 9. The officers frisked the individuals and found an

additional bullet in defendant’s pocket. Believing there might be a gun inside the car, the officers

searched it and found a revolver under a floor mat. Id. ¶ 10. Colyar was charged with multiple

weapons offenses. Id. ¶ 4.

¶ 32 A majority of the appellate court affirmed the trial court’s ruling to suppress the evidence,

reasoning that the police subjected Colyar to an unlawful search without probable cause because

the bullet did not establish evidence of a crime. Id. ¶¶ 2, 19. The majority construed the State’s

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position as being that the officers had probable cause and thus the search of the vehicle was a

lawful search incident to arrest (id. ¶ 17), while acknowledging that the State may have intended

to argue that the search was premised on reasonable suspicion under Terry, rather than on probable

cause (id. ¶ 18).

¶ 33 On review, our supreme court determined, as a preliminary matter, that the State did not

forfeit its arguments related to Terry (id. ¶ 27), and it noted that both parties agreed that the police

conduct at issue was initiated as a proper Terry stop (id. ¶¶ 1, 41). It then turned to the merits to

analyze whether, after seeing a bullet on the center console, the officers’ actions were justified

under Terry. Colyar,

. It noted that the Terry court held that “a brief

investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth

amendment when a totality of the circumstances reasonably lead the officer to conclude that

criminal activity may be afoot and the subject is armed and dangerous.” Id. ¶ 32. Our supreme

court also noted that Terry allows for a reasonable search for weapons (id. ¶ 35), and that Terry

was extended to permit a protective search of the passenger compartment of a vehicle during an

investigatory stop in Michigan v. Long,

(1983) (Colyar,

, ¶ 38).

¶ 34 The Colyar court concluded, consistent with Terry and Long, that the defendant’s fourth

amendment rights were not violated by the officers’ conduct of ordering him out of the car,

handcuffing and searching him, and searching the vehicle in a protective sweep, because they had

a reasonable suspicion that a gun was present that threatened their safety. Id. ¶¶ 41, 52. It therefore

reversed the suppression of the bullets and firearm, noting that under Terry, weapons seized in a

protective search during a Terry stop are admissible. Id. ¶ 52. In so ruling, the court rejected

Colyar’s argument that the officers were required to ask him whether he possessed a FOID card

before ordering him out of the vehicle and searching them. According to the court, the argument

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“ignore[d] Terry’s clear instruction that ‘a perfectly reasonable apprehension of danger may arise

long before the officer is possessed of adequate information to justify taking a person into custody

for the purpose of prosecuting him for a crime.’ ”

¶ 50 (quoting Terry,

). In

any event, the court noted that the officers could have feared for their safety even if Colyar

possessed a FOID card because the risk “posed by a potentially armed individual is not always

eliminated simply because the weapon is possessed legally.” Id. ¶ 51.

¶ 35 Colyar does not support the State’s argument for two reasons. First, the actions of the

officers in Colyar occurred during a proper Terry stop and, in the Colyar majority’s view, the

parties agreed the initial encounter between the defendant and the officers was lawful. Id. ¶¶ 1,

41. Here, not only does the State fail to argue in its brief that defendant’s arrest was supported by

probable cause, it does not even argue that the officers’ initial interaction with defendant began as

a lawful Terry stop. Instead, it suggests that the officers’ initial approach to the vehicle may be

“analyzed under a consensual encounter or a Terry-like investigation,” but then fails to effectively

do either. Defendant asserts that “there was no valid Terry stop in this case. Instead, the incident

went straight from a consensual encounter to a full-blown arrest.” We agree. At trial, Officer

Lynch testified he did not see any suspicious acts being committed as he walked up to the vehicle.

The State acknowledges in its brief that “the officers approached the car defendant was in for a

benign reason.” Thus, it effectively concedes that the initial encounter between the officers and

the vehicle’s occupants was consensual in nature, rather than a Terry stop. The fourth amendment

was not implicated in the initial encounter because it involved neither coercion nor detention. See

Gherna,

. Moreover, Officer Lynch’s testimony confirms that he approached the

vehicle because he believed the individual in the driver’s seat, Luellen, had placed the 911 call,

and she was the one he needed to contact. Nothing in his testimony suggests that he approached

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the vehicle because he believed that either Luellen or defendant had committed or was about to

commit a crime. To the extent that the State perhaps could have, but did not, argue in its brief that

the encounter elevated to a lawful Terry stop upon the officers’ observation of the firearm, we find

the argument forfeited.

¶ 36 Arguendo, even if the initial encounter began as a valid Terry stop in the instant matter,

Colyar does not stand for the proposition that an officer’s reasonable apprehension of danger,

without more, is sufficient to provide probable cause to make an arrest. 2 The State’s argument

impermissibly conflates the concept of taking reasonable measures to ensure officer safety during

a valid Terry stop with probable cause to arrest an individual. Colyar demonstrates that these

concepts are distinct, as it noted that “a perfectly reasonable apprehension of danger may arise

long before the officer is possessed of adequate information to justify taking a person into custody

for the purpose of prosecuting him for a crime. [Citation.] The focus in Terry on protective

weapon searches is the officer’s reasonable belief that his safety or the safety of others is in danger,

regardless of whether probable cause exists to arrest for a crime.” (Emphasis in original.) Colyar,

(citing Terry,

).

2 We observe that Colyar arguably would have supported the police officers’ actions in the

instant matter prior to defendant’s arrest in the context of a valid Terry stop. See Colyar,

(finding that handcuffing during a Terry stop is permitted where reasonable and

necessary depending on the circumstances of each case, and it does not automatically transform a

Terry stop into an illegal arrest).

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¶ 37 For this reason, the State’s reliance on the damaged windshield is misplaced. 3 The damage,

if there was any, would arguably have given the officers reasonable suspicion to investigate. It

would not have added anything to a probable cause determination unless the officers had observed

its causation or had reason to believe that it had recently been caused by a bullet. In any event, the

State argues only that the damaged windshield supported the concern the officers had for their

safety—it makes no argument in its brief that the damage formed the basis of a Terry stop or

supported probable cause to arrest defendant.

¶ 38 After briefing was completed but before oral argument was held, the State moved to cite

additional authority, People v. Burns,

, which we granted. It argued that

Burns was relevant to the issues of whether police may search a suspect for a weapon when they

are concerned for their safety and whether a suspect is considered arrested when the suspect is

placed in handcuffs and searched during a Terry stop. Burns does not aid the State’s case, as no

one disputes that officers may take reasonable steps to protect themselves upon observing a firearm

during a Terry stop without first having to investigate whether defendant lawfully possessed said

3 We note that there was no testimony that the windshield was damaged, and the

photographic exhibits of the vehicle admitted at trial during the officers’ testimony do not depict

the windshield. The basis for the State’s reference to windshield damage appears to be a motion

in limine filed by defendant, wherein he sought to exclude any testimony or evidence concerning

the damage. He asserted that the police report stated, according to Luellen, both that the vehicle

had been shot at the prior evening in Chicago and that the damage was caused by a rock hitting it.

Although the circuit court denied the motion in limine, no reference to a damaged windshield was

made at trial.

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firearm. Once officer safety was ensured, however, some amount of investigation was required of

the officers to establish probable cause for an arrest. Here, there was none. To the extent the State

relied on Burns at oral argument to argue that the inevitable discovery and good faith exceptions

should apply, we find these arguments forfeited because it failed to raise them in its brief.

¶ 39 This leads us to the second reason Colyar does not support the State’s position—it predates

Aguilar which, as we noted above, struck down a section of the AUUW statute that categorically

prohibited the possession of an operable firearm outside the home. In Colyar, once the police

officers confirmed that the defendant had an operable firearm in his vehicle, that evidence, alone,

was sufficient to establish the probable cause needed to effectuate a lawful arrest based on their

belief that the defendant illegally possessed a gun. See People v. James Thomas,

. In the instant matter, because defendant was arrested after Aguilar was

decided, the officers needed probable cause to believe that his possession of a firearm was illegal;

the fact that the officers observed a firearm in defendant’s jacket pocket, without more, was

insufficient. As the First District recently observed in James Thomas, “[p]ost-Aguilar, the mere

possession of a gun in a car could be concealed carry, which would be illegal only if defendant did

not have a FOID card.”

Like in James Thomas, the police officers here did not know whether

defendant legally possessed the gun at the time they arrested him. See also People v. Spain,

(noting that police needed probable cause to believe not only that the

defendant was carrying a gun, but that he did so illegally); Markeese Thomas,

(stating that police “cannot use a firearm in partial view, such as a semi-exposed gun

protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an

individual for illegal possession without first identifying whether the individual has the necessary

licenses. We thus caution against the ‘arrest first, determine licensure later’ method of police

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patrol”). Here, the State’s position amounts to an “arrest first, determine licensure later” method

of policing that has been repeatedly rejected. See Spain,

; and

Markeese Thomas,

. “When officers arrest someone found in

possession of a gun without first asking whether he or she is legally entitled to be carrying that

gun, the police are at significant risk that they are arresting a suspect without the requisite probable

cause, such that any fruits of that arrest will be inadmissible in a criminal prosecution.” Spain,

, ¶ 42. Such is the case here, and a motion to quash arrest and suppress

evidence would have been meritorious, in that it would have succeeded, had defendant’s trial

counsel filed it.

¶ 40 We also agree with defendant that there is a reasonable probability that the outcome of the

trial would have been different without the challenged evidence. Again, a reasonable probability

that the trial outcome would have been different occurs when the “probability is sufficient to

undermine confidence in the outcome.” Simpson,

. Defendant maintains

that “the State cannot obtain a conviction in the absence of the firearm and [defendant’s]

statements” to officer Lynch in the back of his squad car. The State does not dispute defendant’s

assertion that the trial outcome would have been different had a motion to quash arrest and suppress

evidence been granted, and it is evident that without the firearm recovered from defendant’s

person, the State could not have presented a case against him for AUUW. The seizure during

which the officers recovered the evidence lacked probable cause and, as a result, the firearm and

defendant’s statements would have been suppressed as fruit of the poisonous tree had trial counsel

filed the appropriate motion, and counsel’s failure to do so plainly was not sound trial strategy.

¶ 41 Because the State cannot obtain a conviction without the suppressed evidence, the

appropriate remedy is outright reversal of both of defendant’s convictions. People v. Harris, 2015

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IL App (1st) 132162, ¶ 47. See also People v. Leigh,

(2003) (reversing

outright the defendant’s conviction for unlawful possession of a weapon by a felon because the

State could not prevail on remand without the suppressed firearm).

¶ 42 III. CONCLUSION

¶ 43 For the above-stated reasons, we reverse defendant’s convictions for AUUW and need not

remand for further proceedings.

¶ 44 Reversed.

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