thank you good morning may please the court all my name is melissa mae and i represent the appellant raymond johnson in this case we're here today because the defense petition for leave to appeal presents two very diverse issues that need to be resolved by this court the first issue involves a defendant's fourth amendment constitutional rights to be free from unreasonable searches and seizures this issue can be divided of course into several sub cards involving first the threshold inquiry regarding whether the defendant had standing to call into question the validity of the search of the vehicle that he was in when the police searched the vehicle without the consent of the driver second this issue deals with the police escalation of the detention of the defendant under terry terry principles stopping questioning to a full blown seizure third we address the impact of the recent supreme court rulings in arizona viki and on the propriety of the search of mr thomas vehicle now the second issue that we're here to address today is completely unrelated to the fourth amendment issue and involves the split in the district regarding whether unlawful possession of a weapon by a felon which is a class three offense with an enhanced longer potential sentence is a lesser or greater offense then the offense of aggravated unlawful use of a weapon by a felon which is a class two offense with the standard maximum seven year sentence under one act one quite principles with the course permission i'd like to address the fourth amendment issues first the minister permits address the one act one crime issues involved here today the third district erred in determining that the defendant's detention was proper terry in this in this case under case law and statute terry provides that if police have a reasonable articulable suspicion that a person may be involved in has committed or will commit a crime they can stop that person and the statute i ask them for identification for their name for their address and question them regarding what their activities are if at that point in time the reasonable articulable suspicion is increased that  criminal activity has been ongoing then the police can continue to question until there is either satisfied probable cause arises or nothing haven't in which case they should be allowed to release whomever is being questioned in this case the defendant is contending that the initial stop which occurred at three o'clock in the morning what happened initially was that there had been a shooting in an area in peoria and police officers had come to the scene one officer had spotted the vehicle in which the defendant had been a passenger at a place called the friendship house which was near it's not clear from the record whether it's a couple houses or a couple blocks away from where the shooting took place they spotted this vehicle as it was pulling out of the friendship palace and drove over to the taft homes the vehicle did not commit any traffic offenses and when officer hanley stop the vehicle he did not activate his lights he didn't pull it over as a traffic stop he waited until the vehicle had been part and then when the vehicle is part of the two men exited the vehicle he then shine a spotlight on the vehicle and began questioning about twenty five feet from where the vehicle had been parked began questioning the men about their names what they were doing in the area where they aware of the shooting and at this point in time the defendant and the driver both continually cooperated with the police up until the point in time that the police asked the driver for consent to search the vehicle that co these particular gentleman did in response to police questioning was cooperative their answers their answers were described by the state's brief as being vague or being u but it's not clear that they were specifically asked anything other than what they were doing in the area where they were shooting one gentleman responded specifically that he works for caterpillar and does not get involved in criminal activity and the defendant responded that he was in approximately three ten in the morning were there other vehicles present in the area and no there were no other vehicles that this officer observed the point in time that the police officer stopped these gentlemen to begin asking them for their name address and why they were in the area and if they were familiar with shooting the defendant is not contained at this point time that the police actions were improper indeed the police actions basically complied with theory up until the point in time that they asked the driver for consent to search the vehicle which he refused which of course he has a right to do when the driver refused consent to search the vehicle at that point in time the defendant and the passenger with the defendant who was the passenger and the driver w both taken to squad cars approximately fifty feet away from where the car was parked handcuffs secured in separate squad cars there by this point time there were four officers on the scene who were overlooking two suspects and at that point in time lieutenant buell i mean i'm sorry lieutenant adams who had arrived on the scene ordered officer hanley to search the vehicle it's interesting that at the suppression hearing when officer hanley was asked about the search he did not say that he felt that he had a reasonable basis for the search he simply backed away from that said that he searched the vehicle cause his boss told him to whereas lieutenant adams who was the boss on the scene basically said that he thought that this was an exception to the probable cause rule although  didn't articulate what exception he thought that might be now at this point in time the police improperly escalated this terry stop into an improper detention and a seizure because the knowledge that they had at this time was that there had been a shooting nearby and they saw an explorer driving away from a business area and they claim that the defendant the driver were nervous when they were counted by the police the knowledge that the police didn't have is equally telling they didn't have any idea who was involved with the shooting they didn't have any idea of the number of people who might have been involved with the shooting they didn't have a description of the assailant they didn't know whether the assailant was on foot or in a vehicle they didn't know whether there was one shooter to shoot or whether the shooter knew that there was a you know basically no purpose for them to bring this shooter or bring the defendant at this point i was really says speck bring him back for like a show up or anything to get any kind of probable cause that this passenger had been involved in this altercation the defendant and the driver also didn't behave suspiciously at the stop while that it's articulated that they drove from the scene quickly it's clear that they didn't drive from the seeing quickly enough to violate any speeding laws they didn't violate any other traffic offenses and officer hanley merely followed them to where they parked their vehicle he did not activate his sirens or activate his emergency lights when these gentlemen we violent when they finally stopped also they stopped at their own accord so that makes this case basically analogous to a classic terry stop as opposed to a traffic stop where you've got probable cause based on a traffic offense and then  the stop escalates into a basis for a search based upon conduct of the defendant after the stop for probable cause here that there was no basis of probable cause to stop the only purpose of the stop could have been under terry and what's the gentleman cooperated with the police there basis for continuing the terry stop became improper it doesn't show that these gentlemen were fleeing the scene it doesn't show that they fled the police officer when the officer shine the spotlight off for it and began questioning them they did stop they did cooperate they explained why they were there they said they didn't know anything about any shooting and it was only after the driver was refused consent that these gentlemen were handcuffed and separated and placed in squad cars approximately fifty feet away from the explore at that point in time the officers conducted a search of the vehicle which the third district characterized as a protective swee and basically found contraband underneath the passenger seat which led to the defendant being arrested and taken to the police station where he gave inculpatory statements  basically he did not disavow his ownership interest in the gun and he did not say that he exonerated the driver the driver was not charged in this case it's clear on a constitutional  underpinnings that the driver's refusal to give consent can't be the basis for increasing the suspicion thereby giving the police a basis for searching the vehicle up to this point in time the defendants in the driver's actions have actually decreased the reasonable articulable suspicion that they were involved in the shooting up until the time that the driver refused consent since there was no escalation of a reasonable articulable suspicion definit content at this point in time he should have been released since the actions of the drivers and the actions of the defendant didn't escalate to the extent that it gave the officers probable cause to continue to detain they also should have been released there was no exception here to the probable cause requirement there was no warrant this is not a case of the carroll doctrine  and they did not have consent or any exigent circumstances that would have justified a search also it's important note in this case that the state testified or the police officer did testify that at this point in time they had access to a judge and the state's attorney who if there had been probable cause to search this vehicle they could have gotten a warrant and had had the vehicle search properly if that had occurred of course we wouldn't be here today it is clear from the fourth minute that warrant was nonconsensual searches are per se unreasonable and lest they fall within one of the well established exceptions in the state in this case denies that the defendant and the driver were arrested at the point in time that the search occurred  the defendant of course contends otherwise being as he was locked in a squad car handcuffed he was away from the vehicle in no reasonable person under those circumstances at three o'clock in the morning surrounded by four police officers would have felt that he was free to terminate the encounter with the police  even if this court finds that the search was proper under period the defendant has standing to contest the search now the third district in its opinion didn't address the issue of whether the defendant had standing or not and to contest the search however under the cases of united states  this pression hearing the circuit court basically took the position that the defendant this search was an invalid search there's there's no argument that's been made that the search was illegal search that this search was a constitutional search motion to suppress the handgun and the only reason that he found that the evidence could be admissible was he based upon and improperly broad misreading of rackets versus illinois where the state contended that that if a passenger is in a car and he's a typical passion or a typical temporary passenger situation it's not likely that he's going to have a possessory interest or an expectation of privacy and for example the glove box or the trunk or under the seat of the car but this doesn't take into account that the passenger does not check his constitutional fourth amendment rights at the curb as soon as he gets into somebody else's car a passenger for example could get into a car places little box or a duffle bag in the trunk or in this case he placed his own gun under the front seat of the car and thereby open up that question for inquiry as to whether he availed himself of different parts of that car to the point that he might i think factually it makes a difference in this case simply because there is no likelihood in this case that the defendant would have gone back to the vehicle presumably it's not his car so he doesn't have a possessory interest for purposes of going back to the car and driving away or he stopped at a traffic stop they're going to issue a ticket they're going to let him back into the vehicle and it's assumed that he's going to be driving away at that point in time it's a little bit different situation here t definit was a passenger in the car the car was stopped the car belonged to somebody else presumably the car was locked and he was walking away was about twenty five feet away from the car telling the officers he was going to visit somebody in taft homes when the stop occurred so i don't think th to the facts of this case the fact that it was a traffic stop or terry stop doesn't have any bearing disfavored lead on quiet because the fact it's not likely under his circumstances that he would have regained access to the car thereby getting access to the weapon and endangered the police officers in confronted the defendant in an interrogation and at that point in time he admitted that the gun was his and that he was involved in the shooting and claimed basically that he acted in self defense i think that it's not clear from the record exactly how much time that was there's no a different outcome if we see if he's exit of the car going into the house in the cars driven off and gone somewhere else i think it's clear to those circumstances he would have an expectation of privacy in that vehicle on the street or use  offense for a couple of reasons first it carries the maximum possible sentence and from a defendant's perspective that's going to be the most serious offense second it recognizes the general assembly's authority in sentencing issues it's clear that the legislature has the responsibility of determining which is the most serious of of offenses and within that authority the general assembly also has the right and ability to take for example a class three felony and provide an enhanced sentence we've got a split in the districts right now between the first and the third district basically that say what factors trial courts need to look at what factors appellate courts need to look at to make a determination as to which is the more serious offense the third district the position that just look at the felony classification and that should pretty much be dispositive of the issue since the felony classification is usually going to carry the greater offense or the greater sentence that doesn't take into account the facts that are in this case in which the defendant actually was facing a greater senates for the offense of unlawful unlawful possession of a weapon by a felon as opposed to aggravated unlawful use and this is not a unique situation there  many driving under the influence offenses and criminal sexual assault offenses that carry enhanced sentences greater than the standard class two or class three sentence that's provided under the statute sometimes this is a function of how often the offens committed before or what occurs in the particular offense or as in this case the status of the defendant as a felon and i think it's important that this court recently decided an artist's people the artist that looking at an aggravating factor is not something that the court should be looking to to make a determination of which is the more so this offense and if you look at the elements of these two statutes in aggravated unlawful use of a weapon by a felon the fel status is an aggravating factor that elevates this offense it elevates the offense from a class four to a class two where as in i'm all for possession of a weapon by a felon it's actually an element of the offen whereas under the aggravated unlawful use offense a felon who is for example carrying in the case firearm off his property is facing a maximum seven year sentence so based upon the maximum sentence involved it appears that the good afternoon your honor is may please the court miss may my name is david is school which i'm with the illinois attorney general's office on behalf of the people of the state of illinois i think i'm going to take these issues with respect to the fourth amendment claim in the opposite order  colleague our first theory in our brief is the issue of reasonable expectation of privacy as my opponent explained the appellate court declined to rule on that issue although significantly the trial court did find in denying the defendant's motions to suppress that he did not have a reasonable expectation of privacy in the vehicle such that officer hamley search of that vehicle and discovery of the firearm under the front passenger seat implicated in all fourth amendment concerns this is a very fact intensive case and with respect to the recent the expectation of privacy issue we need to just briefly go over several very important facts first it's undisputed that there was no vehicle stop here or traffic stop the defendant was followed a very short distance from the vicinity of a very recent shooting at three in the morning officer hanley simply followed him into the parking lot of a structure taft holmes the defendant actually backed into a parking space and he in his he in the driver thomas exit the car and started walking away from the car it's at this point only  suspicion that there might have been some connection yes there was in the officer's mind the vehicle had been seen in a place which was about two or three houses down on the street parallel to the scene of the shooting this place is called friendship house and it's a celebration army type ministry he saw them getting into the car and then immediately turn around and drive in the opposite direction of the shooting and that triggered in his in his head a reasonable and a reasonable suspicion that these two individuals seen leaving at a fast pace from the scene of a recent shooting might be involved in this case officer hanley testified that he didn't testify that they were speeding over the limit he testified that they were driving fast away from the s approached the scene of the shooting and saw these two gentlemen enter the car and leave there was no one else around the business was close to become aware of he received a dispatch of worst police radio your honour's of the sick very short time he was giving quite sure he did he dropped what he was doing and then proceeded right to the scene and at that point saw a white ford explorer with two individuals enter it in a closed business at three in the morning and drive away that to him signaled a reasonable suspicion that not not that these two gentlemen were involved in the shooting but perhaps they were witnesses or victims or had other information or were involved in some sort of criminal activity that was certainly foot at that time in that neighborhood so having followed them to the parking lot the very first encounter that officer hanley has with these two two individuals isn't the result of a pullover traffic stop he didn't curb their vehicle he never even pulled up next to their vehicle he parked some fifty feet away and put on his spotlight only for safety reasons and approached these two individuals as they were walking away from their car and asked if he could speak with them they said yes he checked i d s he checked warrants at that point he told them to stop and stand nothing in the records indicate how long it took but by the time he had we can we can surmise however it wasn't long because by the time he was doing that lieutenant adams had arrived from the actual crime scene and lieutenant adams testified that he went to the hanley seen at the taft homes right after hearing hanley's dispatch that he was going there having followed suit guys so one  briefly having no reasonable expectation of privacy in this vehicle as he is not a passenger when it was stopped he was a passenger recently but there was no traffic stop he was really walking around on the pavement at taft holmes when he first encountered officer hanley and our argument is that based on these facts he had no reasonable expectation of privacy in that vehicle such that the subsequent search of violated any fourth amendment right that he might have had at that time the defendant cites to brandon versus california which does hold we agree that a passenger in a recently stopped vehicle has standing not only challenge the stop of the vehicle but also in the subsequent search of the vehicle and challenge evidence found in the vehicle is the fruit of the poisonous tree but the facts in our case are off point from those in brooklyn here again to emphasize there was no vehicle stop the defendant was in a passenger and he didn't own the car the underlying rational but that was an alternative argument assuming that he did have a reasonable expectation of privacy in this vehicle we argue as a second ground that the search of the vehicle was completely comported with the fourth amendment under michigan vs long and so to the extent those are inconsistent it's only because there are alternative arguments  the defendant makes much in her brief with respect to the real meat of this case which is the terry stuff the defendant makes much about the contention that the seizure of the defendant occurred only after the officers on the scene learned that thomas the driver who has never been implicated in any crime here refused consent to drive the car that statement doesn't find any record support although that is in fact when the defendant was seized and the car was searched it's better to look at this case rather than in the vacuum of taft homes  but as in a more holistic approach that includes not only the taft homes but what was going on at the crime scene at jefferson where there was a bleeding victim and his aides said earlier lieutenant adams really is the linchpin here he brings these two crime scenes together demonstrates that investigation into this very recent shooting was ongoing and justified the continued detention of the defendant even by covering him and putting him in a local squad car just before he left the scene at jefferson where the shooting victim was lain lieutenant adams testified that he had instructed his officers there to secure the scene interview any potential witnesses including the girlfriend of the victim canvassed the area for other physical evidence and as soon as that evidence was forthcoming brought that broadcast that information over police radio this is what it was at the scene the pat down watches the identification check and then struck officer hanley to handcuff the two individuals and put them in the backseat of the squad car this is the fens main point of contention here but what the officers did was in full compliance with terry principals in michigan versus long which involved a vehicle search not only was the investigation ongoing at this point but the investigation is ongoing in very specific ways all the officers were awaiting further information from the crime scene jefferson it would have been irresponsible for the officers at this point to simply let these two individuals go about their way when very good inculpatory information could be forthcoming from the jefferson scene where as i have described officers continue to investigate interrogate witnesses and search for physical evidence on this basis lieutenant adams made the judgment call that these two individuals thomas and the defendant were still up in the air as far as ascertaining whether they were witnesses or the shooters or even victims themselves who might have run away from the scene so is justified in continuing the tension on this basis now the handcuffing and the placing in the squad car was also completely justifiable under the circumstances not only was it three in the morning with two nervous suspects there but there's also been a recent shooting someone had actually been shot and it was reasonable here for the officers based on their own safety concerns at this point in time to secure these two individuals in the squad car lieutenant adams actually described in his testimony that he had to leave the scene immediately after though he had already seen the victim he had seen that the investigation was certainly not over and by his very instructions was continuing with instructions to broadcast any information out of police radio so when he gets there he says you know i think it's a better idea to handcuff these guys and put them in the squad car there's been a recent shooting it's three in the morning i have to leave i'm going to be leaving two officers here officer hanley i'm going to want you to do a search of the vehicle officer buell you're going to be watching these two guys on your own i think he said he want he was going to have one guy that is officer buell watching these two individuals just to be safe let's handcuff them and put them in the back of officer hanley squad car during the pendency of the search and the pendency of the ongoing investigation until we can find out more now it's during that time that they also search the vehicle the vehicle search was completely acceptable under michigan versus long in that case the supreme court held that  during the terri stop it's reasonable for officers to do a preferred protective sweep of the interior of the vehicle so that any weapons that might be in there can't be used by individuals who remember o detained under terry might very well be released and have access to that vehicle so long search really is a safety oriented search here the defendant's reliance on aunt versus arizona in this way is grossly misplaced  its very expressed terms did not overrule michigan versus long because it recognized that in the terry case the very real possibility exists that a suspect might be released pending the conclusion of the terri stop and for door there's nothing in the record in other words that either the defendant or thomas gave him a car key you want open the door upon instructions from lieutenant adams and after the two individuals were secured in his  the vehicle for protective reasons was completely acceptable to defend i'm sorry lieutenant adams did testify at the suppression hearing someone it in artfully that he believed he didn't he had an exception to the probable cause rule to search that car to the extent that the defendant has argued that that meant he went there to gather evidence rather than to secure the safety of his officers has no relevance here is far as that's concerned the united states supreme court has instructed in ren and in scott that an officer subjective motivations play no role in ordinary fourth amendment analysis and as long as there is one objective lee reasonable and acceptable reason for an officer to take a certain action there won't be any fourth amendment violation under the circumstances so in some we have two crime scenes here the jefferson address where the victim is the taft homes it was reasonable under the circumstances for the officers to discharge their duties diligently and in the utmost safety to detain these two individuals in the squad car and because it's a terry stop performing a protective sweep of the nearby vehicle they have just accident i beg your pardon or i misspoke your honor there's one crime scene that's jefferson where that if they find that based on the circumstances that the officers encountered here in the heat of the moment at three in the morning with the victim down they were acted reasonably in continuing the dissension of these two officers while they waited forthcoming information and during the protective sweep of course they discovered the twenty two caliber firearm under the front passenger seat at which point they were provided with adequate probable cause to make a formal w for short i was the more serious offense its reasoning was well grounded in this court's decisions in our r t c and in lean in we this court said that in comparing punishments and under one act one crime analysis is deviated from the court's instruction in lead that the court should look to the relative punishments can cars and martinez by contrast simply look to the maximum term of the punishment of punishment imposed by each statute that's an overly strict of approach that we think is contrary to this court's directives in leaving our ts doesn't take into consideration the felony classification or any of these other considerations such as probation of the ability to have probation  the length of duration of m s r terms these considerations that give a better picture of what the general assembly intended quote the relative punishments are of the what the general assembly  intended for the statute at issue and in line with this court's language and lee that the courts look to the relative the relative punishments conferred by the statute not just the maximum term set forth by the statutory  y so we believe that the third district in this case was more in line with this court's decision early in our ts in the game cars and martinez by contrast provide a true restrictive approach to analyzing these one act one crime much to address just a couple of the points that the state made in rebuttal it's important notice in this case that the standing issue of the defendant as far as the expectation of privacy in the vehicle was never ruled on by the third district it wasn't ruled on with it was ruled on but if the circuit court level but it was ruled on based upon an accurate reading of people the rockers i think the better standard that the court should have done at that point in time was to make a determination since the defendant did have  a possessory interest in the item that was seized which gives him a basis for standing and he had availed himself of the interior of the vehicle a factual inquiry should have been made as to whether that defendant had standing to contest the search is simply say that if this is been the driver the defendant the motion to suppress would be granted but since it's the passenger no it's not going to be granted basically opens up the concerns that were expressed by the supreme court implement versus california which is that if you've got an officer who's roaming around and they're looking for people to search and they come across vehicles that have more than one person in the vehicle as long as any contraband that seized in that vehicle can be attributed to the passenger basically the officers are there by getting a no holds barred card at that point in time that they are basically immune from contesting the constitutionality of the search and this is exactly the kind of concerns that the supreme court said that it was addressing in bremen versus california when it said that simply by saying somebody is a passenger in a vehicle they dear by have no interest in any search that can that was conducted in that vehicle is a misreading of the fourth amendment another point i'd like to make is and did testify but he felt that he had an exception to the probable cause now there's only a few exceptions for probable cause one of those exceptions is consent which clearly he didn't have another exception would be a search incident  west if this state takes the position that this was an exception to probable cause the only possible way they could go that route would be to say that this was a search incident to the arrest and if it was a search incident to the us then arizona  clearly comes into play because the definit was approximately fifty feet away from the car handcuffed and secured in the state of course is not cited nor are there any cases that we can rely on where handcuffed defendant sitting fifty feet away secured in the squad car and somehow managed to escape his bonds go to a vehicle that doesn't belong to him access the weapon and threaten officers that's never occurred and if it had occurred i believe the state would argue that case very strongly it's also inconsistent for the state to take the position that the defendant had no possessory interest in this vehicle sufficient to warrant it him having standing or contesting standing or contesting the search of the vehicle that occurred and yet contend that defendant had a sufficient possessory interest in the vehicle that would warrant the perspective suite in other words he doesn't have possessory interest to contest the search but he does have enough of an interest in that vehicle that we're going to be concerned about officer safety and him were you accessing the vehicle those are inconsistent positions and so it from that perspective that the state's arguments have to fail the circuit court acknowledged that if this had been the driver whether the passenger the motion to suppress would have been granted both the circuit court in the third district fail to conduct the proper in and whether this defendant had standing to contest the search it's clear in the circumstances that the officers contention that they were still trying to determine whether these people were victims or suspects or  specious because the that is they asked the gentleman did you know anything about the shooting they said no that clears up whether they thought they were witnesses clearly they were wounded for the they are not victims of the shooting and so it appears that the the state immune from constitutional challenges when they stop and search a car with more than one person in it this is precisely the kind of action that the united states supreme court determined was unacceptable in bermondsey california and if this court has no further questions i will conclude my comments