may it please the court my name is christopher mccoy and i represent mr obama in our brief we've raised her the issues and today i would like to focus on the st t being the suppression if you in the nonresident exceptions the full weight and concealed carry act your honour's at st glance this case appears to be somewhat convoluted with multiple granted counsel was ineffective for failing to file that demotion in response the state in its brief focuses heavily on officer safety and investigative top officers can request group a concealed carry license they can request to know the location of a concealed firearm and they can secure the gun for the duration of this case the problem was that the officer did not use these immediately arrested mr hats and conducted no further investigation now if the state is correct and these generalized safety concerns are sufficient to warrant an arrest and would result could arrest anyone they saw in possession of a firearm and because every firearm to some degree represents a safety threat it would make this that's you i just talked about regarding what officers can request completely separate but also are arrests st determined licensure later method of policing that has been condemned by multiple courts really what the state is arguing for here is the ability for officers to immediately arrest anyone that is seen in possession of a firearm now there may be some cases where there are safety concerns which would justify statements were made after he was already read and in the back and why they do not back up now the nd factor the state points to is the electric bullet hole in the car but there are simply too many unknowns in regards to the authors did not know these were bullet holes didn't know when they had been made who had made them and they certainly did not know if they were really as this court needs to go in this case if this court agrees with us on our argument one there's no need for it to address argument to the courts if this court disagreement on the suppression issue addresses argument to mr had just that since it's no big rivers based on the nonresident except in the forty's and concealed carry i'd like to begin the statutory interpretation part of this argument focusing on how to which is the cop premised on the lack of a forward card and the real question with this count is whether or not nonresident steps in requires a physical why and there are two contradicting and the reason for michigan decision is that the exception says it is for quote not residents who are currently license or registered but that's a firearm in their residen found if we license means only a physical license that registered is completely support in fact neither wiggins nor the state ever even attempt to offer any nonresident hunters whose state of residence not require them to be licensed or registered to possess a firearm now there is some superficial appeal to the point that language is juxtaposed with the language an exception ten however the problem is that exceptions thirteen overlaps completely with the exception five and therefore it wasn't passed with the other exceptions in mind and it really doesn't offer much insight into the legislative intent in passing the exception to the question here and ultimately we're faced with a statute where the very some parts not be read together as a harmonious whole something is always going to be under their interpretation so when we have these two p ting interpretations under the rule of lenity the defendant's interpretation should be adopted to other problems with the weekend interpretation  turning now to count one which is the count premised on the lack of a concealed carry license the state does not even respond guarding its count in its rate and this count as well does not however if a nonresident from one of these thirty seven dollars states is traveling through illinois they would have to have their gun broken down on loaded and in case and which in which case it would provide no  benefit in terms of self defense to the to the not in fact the trial court in this case was particularly concerned with this constitutional problem although ultimately it felt that it was by the decision and that they asked for his name it's not entirely clear from the record it certainly is after he had him and in the squad car and presumably already back at the stat now you've indicated that one of the appropriate ways to handle this might be to handcuff the person of interest until everything was resolved so does the handcuffing in the case he was arrested or does it indicate that they were trying to resolve the issue of the legality of the gun in this case case it indicates that he was arrested there could be some other case where hand purpose in this that in this case so it really is indicative of an arrest and not a terry stop ok now there is some authority even though it's that the officers do not have to request the full weight card prior to taking possession of the gun five for purposes of our st officer safety is there anything that says they have to request  indicate that this was a dangerous circumstance for the police officers our contention is that those statements were made after the arrest so at that point over here all right mr mccoy can you hear me yes sorry about these little problems here mr mccloy the defendant was a resident of georgia yes he was a resident of the state of georgia he came to illinois to visit his mother and while he was in illinois unfortunately picked up a case out of cook county part of the for that i'm having problems hearing mr mccloy i will start that answer again are you able to hear me now a firearm or possess a firearm in a vehicle in someone else's vehicles also officers permission to do so however the former version of that subsection required that the vehicle and that that that the weapon carried or be possessed in an open and fully exposed to do or in the glove compartment console or similar compartment of the vehicle and i'm reading from a version of the statute that cited in watkins versus state which is three or four georgia appellate seventy two thousand and ten case what version of the statute was in effect at the time of the defendant's arrest you're breaking up i believe the statute in effect at the time i was the that did not include that right i don't have the statute that you cite in your brief no i would not because i it appears that this current version may have been a response to watkins and other cases like that would you agree that that may require some additional briefing and some some discussion about that what statute was in effect that the time i would i would be willing if this court would like you i would be willing to do some supplemental review on that  if you are you're familiar with people are st songs like to correct people are small and support the supreme court our supreme court discussed the issue of having a permit or license and the court said so long as there was a license or permit permit issued by another state you did not have to have a defendant would not have to have the physical license or permit in his possession at the time of the stop so long as there was one issued by that state and doesn't that language and holmes seem to indicate that they were talking about the physical administration or the physical possession of a license even though you don't have it  your possession at the time of the stop i think what's important to remember is what what the actual issue was in the home which in the home the  did not allow the defendant to even offer i believe he was from the defendant were from indiana in home did not allow the defendant to offer  court in homes did not have the trunk whether or not a medical license was required in all cases but just that it would be proved that a defend because it was it was a court decision from our state correct the only thing i would say about that is that wiggin yes in general trial courts are bound by the  akens also didn't address the federal privileges and immunities clause so the it would not address the exact precise constitutional question here but yes in general  state the state never had an opportunity to argue the exception of inevitable discovery that the police would have learned that the defendant was not in possession or did not have a license or permit on him when he was issued to them by another state which they would have determined at the scene of the rest they just simply secure the weapon as you can see that they could have done correct they never was able to argue inevitable discovery i would agree that the state would not able to argue inevitable discovery but inevitable  reason repeat what you're saying that i agree that the state didn't have the opportunity to argue inevitable discovery however that doctrine does not apply consensual encounter or community care taking issue when they see the firearm don't they have the right to secure the weapon for their self protection for officer safety reasons even if they're not in fear they should secure the weapon until at least they determine that the weapon is being carried or being possessed legally at the time of this stop was in effect greater actually a few months after the offense in july of two thousand the legislature enacted subsection eighty one which allow firearm that's all the questions i have just to thank you i just have a couple of questions when the window had the bullet hole in it would that not have been justification for the officer's actions for their safety then again the bullet holes themselves hell the office very very little indication made them how they were made when when these hold him into the windshield and again ultimately they said nothing about whether mr hatch legally possess the fire there ever any discussion of the bullet hole that cryo not a trial no thank you mr london for your honour's may please the court counsel you know the people disagree that defendant was under arrest prior to his statement  is still good law even in light of abol are more importantly byrne's makes it clear that police are absolutely not required to have a conversation with the defendant about whether he possesses or permit before they really act to protect their safety as the court noted even a person with a foid card and or a concealed carry license can put an officer in danger under certain circumstances as importantly in cases such as this placing a defendant in handcuffs to not transform either a consensual encounter or a terry stop to an arrest  those are facts that must be looked at in a case by case basis in this case as the st officer approached the car there had been a nine hundred and eleven call regarding a possible stolen vehicle it was late at night the car he had the officer approach was on the street it was not in a parking spot i believe it was at a stop sign but again it was not a parking spot as the officer approached he heard the female driver saying something along the lines of yeah i see an officer approaching he's just arrived the officer approaches the car and says are you the people that made the nine hundred and eleven call the female driver responds maybe without being there and seeing and hearing the tone of that it of itself is a peculiar response which i think would alert an officer that something weird is going on if indeed you were nine on one caller and you were still on the line although i believe that she hung up as you are pro choice why wouldn't you just say yes i was it was late at night and the people completely disagree with the impact of the bullet holes on the officers concerned there was not discussion just a shot stack about trial regarding the bullet holes there was a pretrial motion relating to that defendant would have this court believe that the officer not only should investigate whether or not the gun was possessed legally but should have investigated in some way that how the bullet holes got there and again let's make it clear the testimony and the evidence was clear that they were bullet holes and officer does not need to engage in a lengthy discussion about are those bullet holes how did it occur or when did it occur counsel is correct that they didn't know when those bullet holes heard or took place but again that isn't something that needs to be looked at at that time the concern is officer safety not only burns but the cases that the defendant cites for the proposition both thomas and spain say the same thing that officer safety is initially is paramount the people agree that the cases suggest that the court to caution against an arrest st determine license later approach however in each of those cases the court upheld police activity they warn the police that be careful because if the ultimate arrests we find doesn't have probable cause we're going to suppress the evidence but in each of those cases they upheld what the officers did actually in spain the court specifically suggested that the mr spain's failure to voluntarily produce such a license even asked since the that the failure to present when when and countered is in itself a factor it's not determinative of course but it's a factor to consider it was only the dissent not the majority that would reverse the facts in this case definitely allowed the officers to be concerned about their safety and secured the gun and in this case handcuff the defendant the evidence then shows that it was either as police were bringing defendant to the squad car or had placed him in the squad car presumably although obviously we'll never know to run his name and investigate further at that time when the people argue the defendant was not yet arrested that defendant engaged in i won't even call it a statement but a bizarre diatribe about you've got the right word i you know i i carry a gun everybody carries a gun this is bullshit at that point in time police had every reason to believe defendant was drunk high mentally ill but clearly dangerous and more importantly combined with the other factors that they were they had probable cause at that time to believe that defendant did not have either a ford carter or a license to carry a gun moving on to the nd issue wiggins versus mashad the st this is an wigan's actually did conduct a fairly complete analysis contrary to defendant's suggestion on when and whether or not now in a way a resident is exempt from the foid card act it is true that they did not discuss in that case specifically the concealed carry act but the exact same analysis would apply the court found that an actual physical license was necessary and that the federal courts analysis i'm a shock of the l and i statute was flawed regarding whether or not a licens was required the court actually did go into the concept of the lessons versus registration and licens versus licensure and found that the federal courts analysis under a dictionary definition was inaccurate as i said the same analysis would apply to the concealed carry act as importantly the court found as the l and i supreme court had found previously that the foid card act was indeed constitutional it was not an absolute prohibition on a individual's right to carry a weapon it was nothing more or less than a regulatory method that almost every state including george l and i have certainly found relevant and constitutional in addition contrary to defendant's position and contrary to mashad ga thirty seven dollars states it does not act just say thirty seven dollars states do not have  licensing thirty seven states might not have a ford card type requirement as far as the people have found almost every state and i think vermont might be the only exception has some equivalent the concealed carry licensing so just about every state including georgia does have a concealed carry or as ga calls it a weapons carry license which would make that individual exempt in wigan's however the court found that even though that defendant did have a permit from an army permit that that wasn't a sufficient state license people also note that defendant relies on not a license that the defendant has in georgia but rather an exception exactly which form of that was in effect at the time which the people agree might be appropriate for subsequent briefing but the people also know that the  section that was that was a fact of at least may of two thousand and seventeen subsection c says that if a person does not have a weapons carry license and if they carry a handgun the weapon must be cased and unloaded when carried while again further briefing might be necessary the people suggest that under any of the statute even if the exception word will apply which people don't think should under wigan's there is a definite question of whether defendant one would be would fit under that and two how exactly the  one must be whether it's k stern unloaded or as your honor suggested in the glove compartment but certainly was not the president in this case i am open for questions bizarre diatribe at that point in time in addition to the concerns of officer safety at that point in time there was the reasonable suspicion articula suspicion that we believe that well we believe it went from a consensual approach very quickly into a terry stop but probable cause occurred after the defendant's  statement for or what we call a statement because at that time the officer would have had not only a concern for safety but reason to believe that the defendant did not possess either and he did not have the gun because the gun had been taken by the officer so what what does any of that statement say that relates to the legality or illegality of that proposition that when a defendant is confronted with the concept of we're arresting you for possessing a gun the the individual actually bears some burden to say wait a nd i have a license this is valid it wasn't just a bizarre statement it was in the nature of of a threat it wasn't just well i'm missing i have a gun calmly it was you know you have the right person i have a gun i'm reading into the tone of how he said it but i'm reading into that based on  the evidence that was later introduced at sentencing that each time the defendant was stopped he went into some strange  foid card or possess a license but it was certainly probable cause and as justice bearcat pointed out in the case of people versus burns they did discuss not only inevitable discovery which would have been true in this case but a good case exception and under both a good faith exception and inevitable discovery once defendant was arrested and brought back for further investigation it certainly would have been discovered at that time but good faith certainly at the time of these stop is one thing but what if anything before they actually wore out the complaint  testimony was almost exclusively in response to questions by the feds counsel not the people and the testimony almost completely was based on officer safety concerns the testimony they did not ask whether or not you stablish prior to swearing out the complaint whether or not they were aware that defendant did or didn't possess a license or foid card they asked whether at the time that you handcuffed him whether or not they were aware that they possessed a four card they acknowledge that they were not at that point and none of the case law requires it again the people would suggest that the response to the outburst itself the stablish is probable cause  especially if you look at the stain a factor in that you can you could take into account defendant's failure to say listen you got you know you arrested me for the wrong purposes i have a license i have a card i'm authorized you know in a foreign state that was this is sufficient to establish probable cause for that arrest and finally you indicated that various cases the propre it turns that officers course we want them to be safe but we also want them to have probable cause and the morning is more precise in that it says than if you do not have e assistance of counsel why is not the appellant request to find ineffective assistance appropriate in this case under that those warnings was i would argue not even as strong as this case in culture you have them just approaching a car it's a consensual approach when they find a bullet few months part aguilar but the motion to reconsider was denied after i go lar that certainly does not suggest directly but at least implies that our goal our mayor been considered but more importantly and spain and thomas in each of these cases the evidence that the police had related to those was was no stronger or is as strong in this case in none of those cases prior to arrest did the police officers ask the defendant whether or not they had a license or as they can they did not request the defendant present that additional bizarre kind of strange response the bullet holes and then defendant's not only possession of gun but his diatribe we believe would be more than sufficient to establish it plus  under burns the i'm sorry under spain the the failure for the defendant to note that he did have a foid card or a concealed carry license was sufficient to establish probable cause that defendant so yeah i just have a green questions which i will ask the whole basis behind your appeal was an ineffective assistance of counsel and failure to file a motion to suppress correct correct in if there was a motion to suppress that would have been running anything made after the initial stop would not have come in at a motion to suppress correct it was a community caretaking as you previously said so once they get past that community caretaking how did they go from there sure it very quickly escalated into a stop pursuant to terry based on again the driver's response the bullet holes and the officers and obviously spotting the gun at that point in as the cases that were cited by both defendant and the people including burns the officers concerns don't relate necessarily to probable cause the officer concerned the officers don't are required to ask questions before they place a defendant in coffee or or and or secure the weapon at that point in time it was still a terry stop there is no case that says that you must then ask questions before you have probable cause the people suggested again unfortunately due to the facts of this case we don't know whether or not the officer would have presumably and the people's position is the officer was taking defendant to his car to run his name and to determine at that point in time whether or not the defendant possessed a void card or had a license and would have asked those questions at that point after the never because it was at that point wasn't back at the station it was at that point that defendant came out with this bizarre statement and and at that point in time that was sufficient to establish probable cause for the police to believe that defendant did not have that the further investigation that led to proof beyond a reasonable doubt was not necessary at that time that was done later but yes we agree completely the officer never did the officer never did because the statement transferred the terry stop into an arrest and probable cause at that time ok fair enough so in your in your brief when you you rely heavily on your brief on the sentencing hearing which again that's well past the on what anything would come in in the motion to suppress are you mentioned all the information in the sentencing hearing for no better reason than the dirty up defendant to the contrary we rely heavily on the sentencing hearing to suggest that there was more than sufficient evidence to establish that defendant would not have a fit under the exception to the georgia rule in that if defendant had mental health issues drug issues a of have been sufficient to suggest that defendant was a person who was prohibited by law from possessing a firearm so that that's all well and good i individual from carrying a gun aguilar does not say that you cannot put reasonable for a good bishop is on that in georgia the reason the prohibition was that you are present prevented from carrying a gun under certain circumstances as does i'll annoy i mean eleanor you cannot obtain either foid card or concealed carry license if you have and the people would suggest that defendant if he applied in illinois would not have been eligible for either foid card or concealed carry based on his activities and that's why we highlighted the evidence at  sentencing but what would have also yes we do agree that inevitable discovery was relevant and all of those factors would have been brought out so yes inevitable discovery is a factor however i would renew my position that the police did have probable cause but yes all of the information that was then garnered would have inevitably been discovered one last question which was based upon what was the belief that he had committed a crime what was the crime they believed he had committed  say you definitely it's better to ask you should ask however you can take into account even without and in both thomas and spain the people did not sorry the people the police not ask either of those defendants for a foid card or a license did not demand that defendant present that and spain as i said specifically said the fact that defendant didn't volunteer is a factor to consider so if this court would choose to overrule both of those cases they would almost have to do that because yes is it better to ask no question  if the police or the state's attorney were to ask us we would strongly recommend that that be done and required again thomas and spain directly stand for their proposition that no it is not you can look at the other circumstances defendants diatribe saying everybody has a gun this is bullshit strongly suggests that that the police had reason to believe that he did not have unclear whether it was as they were leading him to the copper or as he was placed in the car yes however again if he was not yet under arrest but that was for that was still part of the cherry stop and again we'll never know one fortunately the people believe that it is reasonable that at that point in time they would have run his name sheet if he had warrants enough he had in this case as the a saying they may have we never had that opportunity i'm suggesting that the two other cases stand for the proposition the police don't have to ask a defendant before probable cause is established and that specifically the defendant's failure to say i have a license is one of the factors to consider so the statement was there question thank you thank you begs the question and again the question that i'm suggesting you're begging is that once they are they handcuffed been placed him in the squad car that he was under arrest we don't agree we don't agree with that in the case law doesn't suggest that people versus burns specifically says that and both thomas and spain imply that handcuffing the defendant who has a gun does not equate to arrest and does specifically does not transform a terry stop into an unlawful arrest i want to have several other questions that you've answered you've position correct definitely they can make the arrest without determining whether or not that firearm is because that's your position ok let me let me just address one second those are two separate questions one is can they handcuff them two can they arrest him yes it is my position they can do both and again my position is supported by both thomas and  spain my position for the st that they could handcuff him is supported by burns colyer thomas in spain my position that they can arrest him is supported by thomas and spain in thomas or spain does it say that mere possession of weapons and or fear of a police officer or officer safety reasons justify a full blown arrest this was a full blown arrest no matter how you cut it correct after his statement yes prior to his statement no and was a reference to where he lives he produced in georgia driver's license and you referred to it as a rant that even suggested he may have been high or intoxicated but that it's equally true that could have just been a protest by somebody who believes that their unjustifiably arrest correct correct and that's where spain comes into play and spain specifically says that the failure to present a lifesaver ballad license or a full white card or suggests that i'm authorized by ga and this case is a factor that can be considered certainly the mere possession of course post aguilar is not sufficient however you look at this intelligence of the circumstances in each of those other cases there were other circumstances that the courts found was sufficient for probable cause in this case as i have previously explained as i explained in my brief the time of night the bullet holes the gun and then the diatribe the common and then the failure to under spain say that i have a right to possess and carry this weapon the composition of those are what leads to probable cause not just the mere possession of the gun argue with the police that were in comes from he doesn't need to carry a license everyone out there has a gun it's both the law says i can due respect we don't view that as a protest we weren't there we can't hear the tone is used but but but you know looking at the black you know looking at the words this it was nothing more or less than saying this is bullshit i have a right to carry a gun a right to carry a gun could be nothing more or less than his belief that the nd amendment allows it regardless of the laws he certainly did not assert that he fit under the exception to the eleanor law and he certainly did not exert a right under georgia law obviously the people don't know and there's no way of ever knowing the strong people suspect that this defendant had no clue about the exception to eleanor law or what the georgia law was certainly was the exception to the weapons carried georgia law  as in addition and as far as the various versions neither side referenced that we did go into why we believe that the exception to the mccoy honors i just have a few points regarding the suppression issue and that there was no probable cause before mr hatch made the statement that he made they were not doing any further point they had probable seven cause to search the bend that is a factual distinction from this case as well of the fact that there was a terry stop based on the traffic violation whereas here there was just a consensual and now pain is also fact and worst of all because in that case there was a the alert about a gang targeting a rival gang house and in that case the pendant was found in the yard immediately next he would be targeted house trying to shove a gun in his pocket now one of the factors that they did focus on  amendment on its head by analyzing the senate for exercising his right to remain silent in fact even a majority in spain is not conclusive on the whole thing they say that officers there is a for we are not saying the officers needed to conduct a lengthy investigation into the bullet holes and in fact the opposite is simply needed to ask one question which is whether or not take the case under advisement that the court thanks both parties for their arguments today the court will discuss mr mccloy whether or not we're going to request additional briefing as well as whether or not the state should be allowed to argue good faith or inev discovery when those issues were squarely before this court but again the case will be taken under advisement a written decision will be issued in due course the court thanks both parties for the quality of your arguments this morning the court's stance and recess have a good day thank