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GeePeeDoHolic
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Amazing what courts decide to rule sometimes. Never would have thought IL would rule this way.

Cop suspects gun. Suspect goes in house. Cops search house to find felon with a gun.

[T]he possible observation of a handgun is not in itself, without any other evidence of a crime, sufficient to provide an officer with probable cause for arrest
http://www.thetruthaboutguns.com/20...rts-just-made-decision-protecting-gun-owners/

http://www.slate.com/articles/news_..._courts_are_eroding_the_second_amendment.html
 

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Man of Myth and Legend
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I about had to read those twice to believe it. Illinois appellate court holding that is mighty hard to believe. But I guess at some point even an Illinois judge or 2 gets a sense of reality in them.

Nemo
 

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Member Georgia Carry
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Wow! :shock:
 

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I have not read the case, and I am not familiar with Illinois law, but this could turn on whether the license there is an affirmative defense or an element of the offense, as it does in so most other states.

Actual case opinion here: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/1stDistrict/1142019.pdf

Judicial restraint being articulated by Illinois judges surprised me.

"As judges, we are stuck between a hammer and the anvil. On the one hand, we are ever mindful of, and horrified by, the level of gun violence that continues to plague the City of Chicago. We feel confident in saying that all members of the judiciary wish for reformative solutions. But we also are mindful of our limited role in a constitutional system. We cannot sidestep or disregard instruction from both the United States and Illinois Supreme Courts to achieve a specific outcome. When we hold that precedent dictates the result here, it is not because we are naïve, or “soft on crime.†On the contrary, it is because we must follow, not rewrite, the established law and the facts in evidence."

Sounds like something Robert Bork could have written.
 

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Ok, explanation for the ruling.

The probable cause was based on old Illinois law regarding possession of a weapon. That law was struck down as unconstitutional. Therefore, it could not have provided probable cause.

The probable cause to pursue Horton was based on the officer's belief that Horton possessed a gun in violation of the unlawful use of a weapon statute (720 ILCS 5/24* 1.1(a) (West 2010)), later found unconstitutional on its face and void ab initio. Aguilar, 2013 IL 112116; Burns, 2015 IL 117387. As a result, the search and seizure of the gun was unlawful and the trial court erred when it denied Horton's motion to quash his arrest and suppress the evidence.
 

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The Supreme Court has a "good faith" exception to the exclusionary rule which would ordinarily apply, but Illinois rejects that and gives greater protection to criminal defendants.

Our supreme court has held the "good faith" exception, recognized by United States Supreme Court in Krull, violates the Illinois constitutional provision prohibiting unreasonable searches and seizures. People v. Krueger, 175 Ill. 2d 60, 74 (1996). Before Krueger, the Illinois supreme court applied the "lockstep doctrine," following United States Supreme Court rulings in fourth amendment cases. But in Krueger, our supreme court declined to adapt the Krull decision by applying the good faith exception to allow otherwise inadmissible evidence. In Krueger, the Illinois supreme court stated: " 'Decisions involving the exclusionary rule and the Illinois Constitution's article I, section 6, require that we carefully balance the legitimate aims of law enforcement against the right of our citizens to be free from unreasonable governmental intrusion.' " Krueger, 175 Ill. 2d at 74 (quoting Tisler, 103 Ill. 2d at 245). Krueger then decided that citizens' rights prevail because an exception to the Illinois exclusionary rule would provide a "grace period" for unconstitutional search and seizure legislation, "during which time our citizens' prized constitutional rights can be violated with impunity." Id. at 75. Further, "We are particularly disturbed by the fact that such a grace period could last for several years and affect large numbers of people. This is simply too high a price for our citizens to pay." Id. Krueger concluded that article I, section 6, of the Illinois Constitution of 1970 prohibits applying Krull's extended good-faith exception to our state exclusionary rule. Id. at 75-76.
 

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READ THIS!

The dissent argues the officer did have reasonable suspicion for an investigatory Terry stop, because, although possessing a handgun could be a legal concealed-carry, it could be illegal if Horton did not possess a FOID card (as required by statute), and the officer could have stopped Horton to investigate whether Horton was carrying the gun legally. This rationale leads down a dangerous path. By way of analogy, it is also illegal to drive a car without a valid license. If an officer makes eye contact with another motorist, and that motorist then turns onto another street, can the officer execute a traffic stop to verify that the motorist has a valid driver’s license? In that situation, we would say the police officer needed to have reasonable suspicion, based on articulable facts, that this particular motorist did not have a valid license. Officer Hummons had no articulable facts to believe that Horton was carrying a firearm without a valid FOID card. For that matter, in our hypothetical, the officer stopping the motorist had more reasonable suspicion than Hummons, because the officer saw the motorist driving while Officer Hummons had a hunch that Horton was carrying a handgun based on his momentary view of an object in Horton’s waistband. Hummons originally testified that he saw a chrome metal object but could not tell what it was, but later, at trial, stated he thought the object was the butt of a handgun. Not only are the different versions incapable of reconciliation, but the original, closer-in-time testimony cannot be ignored; as such, there are no specific and articulable facts that justify a Terry stop.

The State theorizes that the officers’ approach and subsequent pursuit of Horton was justified based on “reasonable articulable suspicion,†under Terry. Id. But Terry does not apply as it pertains to investigative stops by police officers and not entry into a home absent probable cause. See People v. Wear, 229 Ill. 2d 545, 566-67 (2008) (entering residence “to merely conduct a Terry stop†violates fourth amendment). “Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime.†Id. at 563.

The dissent would hold the totality of the circumstances supports a finding of reasonable suspicion and the officer’s pursuit of Horton was reasonable. Infra, ¶ 88. But “the totality of the circumstances,†is no substitute for the “reasonable suspicion†of criminal wrongdoing, based on “specific and articulable facts†from which a determination can be made that the police officer’s action was not arbitrary or harassing. Terry, 392 U.S. at 21. In Terry, the police officers watched the defendant and another man for 10-12 minutes on a street corner. Something about the two men did not “look right†and aroused suspicion. The officer followed them and when they stopped to talk to a third man, the officer approached and identified himself. These facts sharply contrast with this case. The officers in Terry had ample time to observe the suspects while the police officer here was riding in a moving car and saw Horton for a moment, and immediately decided to stop him. The defendants in Terry were “pacing, peering, and conferring†in front of some stores; Horton stood in a front yard of a house that Hummons thought was Horton’s home.
 

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Exigent circumstances (they cover all the bases)
A gun is not as disposable as either money or drugs. The "exigent circumstances" of suspects with narcotics or other easily destroyed evidence does not apply. Even potential destruction of drugs does not constitute exigent circumstances sufficient to justify a warrantless entry unless the police officers have particular reasons to believe that the evidence will be destroyed.
 

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The dissent argues basically that the police should be able to detain anybody with a firearm to determine whether the possession is legal. Kind of scary.
 

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Man of Myth and Legend
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Exercising our 2nd Amendment right doesn't sit well with the police, does it?
Thats because police are special and deserve to go home end of shift better than anyone else.

Nemo
 
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