Illinois Official Reports

Appellate Court

People v. Thomas, 2019 IL App (1st) 170474

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,

v. MARKEESE THOMAS, Defendant-Appellee.

District & No. First District, Second Division

Docket No. 1-17-0474

Filed

Modified upon

denial of rehearing

March 19, 2019

May 14, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-CR-5636; the 

Hon. Steven G. Watkins, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

John E. Nowak, and Tasha-Marie Kelly, Assistant State’s Attorneys, 

of counsel), for the People.

Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl, 

Assistant Public Defender, of counsel), for appellee.
- 2 -

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.

Presiding Justice Mason and Justice Pucinski concurred in the 

judgment and opinion.

OPINION

¶ 1 Defendant Markeese Thomas was charged with aggravated unlawful use of a weapon 

(AUUW) after police observed defendant, while in the common area of an unlocked multiunit 

apartment building, hand off a gun to his friend and then flee upstairs into an apartment unit. 

Defendant filed a motion to quash his arrest and to suppress the evidence, which the circuit 

court granted. The State now appeals, arguing that there was no fourth amendment violation 

since defendant was not a resident of the apartment unit into which he fled and since the offense 

occurred in the common area of the building. The State further argues police had probable 

cause for the arrest even without knowing that defendant lacked licenses under both the 

Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01 et seq. (West 

2014)) and the Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/1 et seq.

(West 2014)) and, regardless, defendant had abandoned the weapon before his arrest, thus 

precluding application of the exclusionary rule. For the reasons to follow, we agree with the 

State that the circuit court’s judgment must be reversed.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with various counts of aggravated unlawful use of a weapon 

following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in 

Chicago, on March 25, 2015. The charges, in sum, asserted that defendant illegally possessed 

a handgun while not on his land or in his home (or another person’s as an invitee) and without 

a valid Firearm Owners Identification (FOID) card or concealed carry license. See 720 ILCS 

5/24-1.6 (West 2014).1

¶ 4 Defendant subsequently filed a motion to quash his arrest and suppress evidence illegally 

seized.2 He asserted he was illegally stopped absent reasonable suspicion and arrested without 

probable cause and the items recovered were a direct result of this unlawful arrest. At the 

1

As discussed in further depth later, in People v. Aguilar, 2013 IL 112116, ¶ 20, the supreme court 

held that on its face section 24-1.6(a)(1), (a)(3)(A), (d) of the aggravated unlawful use of a weapon 

statute, found in the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), 

violated the second amendment right to keep and bear arms because it prohibited carrying a firearm 

outside the home. Aguilar, however, did not vitiate the entire AUUW statute since the right to bear 

arms outside the home is still subject to meaningful regulation. Aguilar, 2013 IL 112116, ¶ 21. To that 

end, in People v. Mosley, 2015 IL 115872, ¶ 31, the supreme court recently upheld the constitutionality 

in the aggravated unlawful use of a weapon statute of the FOID card requirement in subsection (a)(3)(C) 

and the 21-and-older requirement in subsection (a)(3)(I) for gun possession outside the home (720 ILCS 

5/24-1.6(a)(1), (a)(2), (a)(3)(C), (a)(3)(I) (West 2014)). Here, the parties do not dispute the gun charges 

that were lodged in this case. 

2

Although entitled “MOTION TO SUPPRESS EVIDENCE ILLEGALLY SEIZED,” the substance 

of defendant’s motion sought to quash his arrest and also to suppress evidence, and both matters were 

also the subject of the hearing.
- 3 -

ensuing hearing, Officer Caribou, of the Chicago police, first testified that on the day in 

question, he was on routine patrol with his partner, Officer Pena, in an unmarked car and in 

plainclothes, although Officer Caribou wore his police vest bearing his star number, name, and 

the word, “police.” Officer Caribou had worked that area many times and made multiple arrests 

for narcotics, gangs, and drugs. He was patrolling due to the illegal activities of two rival gangs. 

Around 7:30 p.m., as they drove slowly down Kenwood Avenue, from about five feet away, 

they observed four or five males “loitering on the sidewalk in front” of the aforementioned 

apartment building. At that point, Officer Caribou saw two of the males, later identified as 

defendant and his friend Turner, “flee into the building.” At that moment, Officer Caribou did 

not observe defendant holding a gun. On cross-examination, Officer Caribou specifically stated 

that defendant looked in his direction just before fleeing. After curbing his vehicle, Officer 

Caribou jumped out and followed the two men. 

¶ 5 In response to defense counsel’s question, “Had you announced your office any time prior 

to that?” Officer Caribou stated, “I am pretty sure we—we always say police.” He then clarified 

that, although he did not announce his office while driving past the building, he did announce 

it as he left his vehicle on the sidewalk and “gave chase” into the building. Significantly, at 

that point defendant and Turner were already inside, and Officer Caribou lost sight of them for 

several seconds, as the door closed behind them. The other members of the group simply stood 

still on the sidewalk. 

¶ 6 Subsequently, Officer Caribou “reopened the door,” then stepped inside the building to 

what he described was the “common area.” The evidence thus indicates that the building was 

unlocked, although Officer Caribou never explicitly stated this. Once inside, Officer Caribou 

observed a hallway, and to the right was a first-floor stairwell, where defendant and Turner 

stood. Just after the door closed behind Officer Caribou, both defendant and Turner looked in 

his direction. Officer Caribou then saw that defendant had a firearm, which defendant promptly 

handed to Turner before fleeing to the second floor. At that point, Officer Caribou “probably” 

said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the 

door behind him. Turner, who was “locked out,” froze and then threw the handgun on the 

second-stair landing. Turner was detained and handed off to Officer Pena, who had just arrived 

inside the building. 

¶ 7 Officer Caribou recovered the loaded firearm, “a [.]380,” and returned to the locked 

apartment unit. A female, whom Officer Caribou believed was defendant’s girlfriend, opened 

the door. Officer Caribou arrested defendant, handcuffing him just outside the unit. Defendant 

was transported to the police station, where he received Miranda warnings. Only after that did 

officers learn defendant did not have a FOID or concealed carry card. 

¶ 8 In response to the State’s questions on cross-examination, Officer Caribou stated that he 

had not stopped or detained defendant before defendant and Turner initially fled into the 

building. At the police station, Officer Caribou also discovered that defendant resided at 7644 

South Stewart Avenue.

¶ 9 The defense rested, and the State moved for a directed finding, arguing the defense had not 

met its burden of showing defendant’s fourth amendment rights were violated. The State 

argued the weapon was recovered in the common area of the apartment building, where 
- 4 -

defendant had no privacy interest. Moreover, he was not a resident of the apartment unit, so he 

had no “standing.”3 Accordingly, there was no stop, search, or seizure of defendant that day.

¶ 10 The defense countered that there was in fact a stop but no reasonable suspicion to support 

it “from the inception.” That is, the officer’s several-second observation of the loitering group 

did not amount to reasonable suspicion to pursue defendant. Defense counsel emphasized the 

two individuals fled into the building even when officers had not yet announced their office. 

There was no suggestion that defendant and Turner knew police were in the vehicle or fled at 

the sight of the officers (a matter counsel conceded could lead to reasonable suspicion). The 

defense noted it was a crime-ridden area where one might expect flight at the sight of a slowmoving vehicle. In response to the judge’s query, counsel stated that defendant’s privacy rights 

began at the point that defendant entered the building. The defense elaborated that defendant 

entered the apartment unit and locked the door behind him, with his girlfriend eventually 

opening the door, all of which suggested that “would be enough to establish” defendant “may 

be a resident of this building.” The defense thus asserted that defendant had a reasonable 

expectation of privacy in the building. The defense further argued that defendant was arrested 

prior to any knowledge as to the lack of a FOID or concealed carry card, so there was no 

probable cause for the arrest, and no exigent circumstances justifying entry into the building. 

¶ 11 The court denied the State’s motion for a directed verdict, declaring, “[a]t this point the 

petitioner has met [his] burden.” The State then rested. Closing arguments largely reflected 

arguments already made. The State added that defendant had abandoned the weapon before 

entering the apartment unit. According to the State, even assuming for the sake of argument 

that defendant lived in the apartment, he still had no privacy interest in the building’s common 

area. The State further argued that the police had probable cause to arrest defendant on seeing 

him expose his gun in public and tender it to someone else, contrary to the concealed carry 

law. Defense counsel, on the other hand, argued such actions occurring inside a residential 

apartment complex did not give rise to probable cause for arrest without police first verifying 

whether defendant had gun licenses. The defense argued probable cause, instead, arose at the 

station, and the court agreed. 

¶ 12 In conclusion, the court noted that there was no evidence of criminal activity from the 

outset “to suggest that this defendant should be stopped in any way.” The court found that 

outside the apartment complex, defendant was not committing any crime, and there was no 

reason to believe he was committing a crime, yet police chased him anyway. The court stated 

that it was during the “pursuit” that police observed a weapon. However, given the laws 

permitting the public to possess guns outside the home via a FOID card and concealed carry 

license, the court ruled that when the police observed defendant with a handgun, they did not 

have probable cause to stop, seize, and then arrest defendant. The court noted that the gun was 

not fully exposed but rather found that “a moment in time in your hand should be partially 

concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun 

recovered “subsequent to the violation of this defendant’s constitutional rights” had to be 

suppressed under the exclusionary rule. The court granted defendant’s motion to quash his 

arrest and suppress evidence.

3

The term “standing” is no longer used and has been replaced with privacy expectation. People v. 

Martin, 2017 IL App (1st) 143255, ¶ 19. 
- 5 -

¶ 13 ANALYSIS

¶ 14 The State appeals from the trial court’s order granting defendant’s motion to suppress. On 

appeal, we give great deference to the trial court’s findings of fact when ruling on a motion to 

suppress and will reverse those findings only if they are against the manifest weight of the 

evidence, i.e., when the opposite conclusion is apparent or the findings are unreasonable, 

arbitrary, or not based on the evidence. People v. Burns, 2016 IL 118973, ¶ 15; People v. 

Lomax, 2012 IL App (1st) 103016, ¶ 19. However, a reviewing court remains free to undertake 

its own assessment of the facts in relation to the issues presented and may draw its own 

conclusions when deciding what relief should be granted. People v. Pitman, 211 Ill. 2d 502, 

512 (2004). As such, the trial court’s legal ruling on whether the evidence should be suppressed 

is reviewed de novo. People v. Bonilla, 2018 IL 122484, ¶ 8. The question of law at issue in 

this case is whether a fourth amendment violation occurred when the police entered an 

unlocked multiunit apartment building without a warrant and, once inside the common area, 

observed defendant hand his friend a gun just before both fled upstairs, with defendant entering 

his purported apartment unit while the friend then discarded the gun. As set forth above, the 

State argues that for a variety of reasons, defendant had no reasonable expectation of privacy 

in the apartment building or apartment unit and there was no fourth amendment violation in 

this case.

¶ 15 The fourth amendment to the United States Constitution protects people from unreasonable 

searches and seizures, as does the Illinois Constitution’s search and seizure provision. U.S. 

Const., amend. IV; Ill. Const. 1970, art. I, § 6; People v. Smith, 152 Ill. 2d 229, 244 (1992). To 

prevail on a motion to suppress evidence at the trial level, the defendant bears the burden of 

producing evidence and establishing a prima facie case that the search and seizure was 

unreasonable. People v. Martin, 2017 IL App (1st) 143255, ¶ 18; People v. Carodine, 374 Ill. 

App. 3d 16, 21 (2007). A prima facie showing means that the defendant has the primary 

responsibility for establishing the factual and legal bases for the motion to suppress. People v. 

Brooks, 2017 IL 121413, ¶ 22. However, once a defendant makes a prima facie showing of an 

illegal search and seizure, the burden then shifts to the State to produce evidence justifying the 

intrusion. Martin, 2017 IL App (1st) 143255, ¶ 18. However, the ultimate burden remains with 

the defendant. Brooks, 2017 IL 121413, ¶ 22.

¶ 16 Reasonableness under the fourth amendment generally requires a warrant supported by 

probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant 

requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop 

(and therefore necessarily seize) a person for temporary questioning if he reasonably believes 

the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91. Thus, 

a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person 

believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001). There are also 

encounters between police and private citizens that involve no coercion or detention and thus 

do not implicate the fourth amendment. People v. Estrada, 394 Ill. App. 3d 611, 616 (2009). 

In other words, if there is no unreasonable government intrusion, there is no search or seizure 

subject to the warrant clause of the fourth amendment. People v. Woodrome, 2013 IL App 

(4th) 130142, ¶ 19. 
- 6 -

¶ 17 Initial Encounter: Reasonable Suspicion and Flight 

¶ 18 We begin our step-by-step analysis with the police officers’ initial interaction with 

defendant. As set forth, police drove slowly down the street in an unmarked vehicle in the early 

evening hours. The area in question was known for narcotics, gangs, and drugs, and Officer 

Caribou testified police were patrolling due to the activities of two rival gangs. As the officers 

approached defendant and his cohort loitering on the sidewalk, defendant looked directly at 

the officers, then defendant and Turner fled into the apartment building and closed the door.4

At that point, the police exited their vehicle, announced their office, and subsequently chased 

the men. 

¶ 19 Although the trial court’s ruling suggests the police officers were unjustified at the outset 

in chasing defendant and Turner, and defendant certainly set forth this argument below, an 

individual’s unprovoked flight on seeing police in an area known for crime is suggestive of 

wrongdoing and may justify police suspecting that individual of criminal activity, which 

warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People 

v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113. That the defendant’s flight 

from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain 

that individual to resolve any ambiguity. Wardlow, 528 U.S. at 125. The determination of

reasonable suspicion must be based on commonsense judgments and inferences about human 

behavior, and due weight must be given to the reasonable inferences the officer is entitled to 

draw from the facts in light of his experience. Id.; People v. Sorenson, 196 Ill. 2d 425, 433 

(2001). 

¶ 20 Here, the most rational inference from Officer Caribou’s testimony is that the police 

presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable 

suspicion. See People v. Jackson, 2012 IL App (1st) 103300, ¶ 23. While defense counsel 

suggested that defendant and Turner could have mistaken the unmarked police vehicle for a 

potential drive-by shooter, for example, this innocent explanation does not lessen the officers’ 

objective in resolving any ambiguity under the law. Although defendant bore the burden of 

production, he did not himself testify at the hearing, so we do not have any evidence of his 

subjective reason for fleeing. Cf. In re Mario T., 376 Ill. App. 3d 468, 473 (2007) (finding the 

defendant established his prima facie case, where he testified that he was visiting his sister and 

thus doing nothing unlawful at the time he was stopped and frisked). In fact, defendant and 

Turner were the only two to flee among a group of four or five men, which weakens defense 

counsel’s argument. 

¶ 21 Regardless, defendant and Turner had already entered the building before the officers even 

announced their office and chased the two men. Contrary to the trial court’s finding, there was 

no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where 

there was no real encounter. See Thomas, 198 Ill. 2d at 112 (holding that a person must submit 

to a show of authority before that show of authority can constitute a seizure). 

4

At oral arguments, defense counsel suggested that the police officers were essentially a block away 

when they observed the loitering group. We find this interpretation contrary to the record, where Officer 

Caribou testified that he was about “five feet” from the group when he made his observations. 
- 7 -

¶ 22 Police Entry Into Unlocked Apartment Building: 

Privacy Expectation in Apartment Common Area

¶ 23 We turn to the next stage of the encounter, Officer Caribou’s entry into the unlocked 

apartment building. Notably, the fourth amendment protects people, not places. Pitman, 211 

Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where 

those people are. Id. As such, a defendant who objects to the search of a particular area must 

prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective 

expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S. 

347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d

at 22. An expectation of privacy must have a source outside the fourth amendment by reference 

to concepts of real or personal property or to understandings that are recognized and permitted 

by society. Pitman, 211 Ill. 2d at 514. A “search” for purposes of the fourth amendment occurs 

when an expectation of privacy that society is prepared to consider reasonable is infringed. 

Carodine, 374 Ill. App. 3d at 22. 

¶ 24 The State argues there was no reasonable expectation of privacy in the common area of the 

unlocked apartment building, which police were permitted to enter. The State further asserts 

that it was in this common area that police observed defendant “committing a criminal offense” 

and, as such, there was no “search” at issue. We are inclined to agree. 

¶ 25 Historically, Illinois courts have found that there is no reasonable expectation of privacy 

in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App 

(1st) 143255, ¶ 20 (cases cited therein). In that sense, Smith, 152 Ill. 2d 229, is instructive. 

There, police officers entered an apartment building around 10 p.m. through an unlocked 

backdoor accessible to other tenants, the landlord, social guests, and other invitees. Officers, 

while standing in the hallway, then overheard a conversation coming from inside the 

defendant’s apartment, wherein the defendant spoke with a raised voice and implicated himself 

in a murder under investigation. Id. at 240. Our supreme court observed that the officers had 

entered an unlocked common-area hallway where there was a diminished expectation of 

privacy and where they had a legal right to be. The Smith court also observed that “the officers 

used no artificial means to enhance their ability to hear defendant’s conversation.” Id. at 246. 

Based on all those factors taken together, the court held no fourth amendment “search” was 

implicated because the defendant did not have a reasonable expectation of privacy in his 

conversation. Id. at 245-46; see also Carodine, 374 Ill. App. 3d at 24 (holding the defendant 

did not have an objective expectation of privacy to the dryer vent because it was located in a 

common area where other tenants of the building, the landlord, and members of the public had 

access; therefore, the officer’s opening and reaching inside of the vent was not a fourth 

amendment “search”). Building on Smith, it is well-settled that once an officer is legitimately 

on the property, in an area impliedly open to the public, he may properly observe any 

“ ‘evidence lying about in the open.’ ” People v. Redman, 386 Ill. App. 3d 409, 418-19 (2008). 

That is, a search does not occur when officers observe what is in open view. Id.

¶ 26 While defendant relies on a recent supreme court case, Bonilla, 2018 IL 122484,5 we find 

it distinguishable. There, the police while acting on a tip regarding drug activity, entered the 

5

In his opening brief, defendant relied on the appellate court’s case in People v. Bonilla, 2017 IL 

App (3d) 160457, because the supreme court had not yet issued its opinion. Following its issuance, we 

granted defendant’s motion for leave to cite the supreme court’s Bonilla case as additional authority. 
- 8 -

defendant’s unlocked apartment building and then proceeded to the threshold of his third-floor 

unit doorway, where a drug-detection dog alerted officers to the presence of narcotics. It was 

on this basis that officers obtained a search warrant. Id. ¶ 3. The supreme court concluded the 

threshold of the apartment door constituted “curtilage” or an area immediately surrounding the 

defendant’s home where his privacy expectations were most heightened, and this was a 

constitutionally protected area. Id. ¶ 27. The use of a drug-sniff dog at the threshold absent a 

warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment 

rights. Id. ¶ 32. 

¶ 27 In reaching its conclusion, Bonilla relied on the well-established analytic framework in 

Florida v. Jardines, 569 U.S. 1 (2013).6 There, police officers entered the front porch of 

defendant’s home and used a trained narcotics dog to sniff at the door for drug evidence. They 

then used the positive drug-sniff to obtain a warrant and search the home. Id. at 3-4. The United 

States Supreme Court held that, first, the officers’ investigation took place in a constitutionally 

protected area, as the court found the front porch clearly constituted cartilage (id. at 6-7), and, 

second, the conduct was an unlicensed physical intrusion not explicitly or implicitly permitted 

by the homeowner (id. at 7-9). It was therefore a “search” in violation of the fourth amendment. 

Id. at 11-12. Having disposed of the case under the “property-based” approach, the Jardines

Court stated there was no need to also consider the additional factor of whether the police 

violated the defendant’s expectation of privacy as set forth in the Supreme Court’s earlier 

decision in Katz. Id. at 11.

¶ 28 Bonilla similarly relied on Burns, 2016 IL 118973, which had “nearly identical” facts and 

also employed the Jardines framework. Bonilla, 2018 IL 122484, ¶ 25. In Burns, our supreme 

court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s 

apartment landing and door, located within a locked apartment building, violated the 

defendant’s fourth amendment rights. Burns, 2016 IL 118973, ¶ 44. Burns noted the landing 

was clearly marked “with limited use and restricted access” such that it, and therefore the door 

threshold, constituted curtilage. Id. ¶ 39. The Burns court emphasized that the building 

entrances were locked and that “this case [was] distinguishable from situations that involve 

police conduct in common areas readily accessible to the public.” Id. ¶ 41. 

¶ 29 Building on Burns, Bonilla nonetheless held that even the unlocked status of the apartment 

building in its case was a distinction without difference, where the police clearly entered the 

apartment unit’s curtilage (the door’s threshold) to conduct the dog-sniff for drugs. The court 

further reasoned that the threshold was analogous to the front door in Jardines. In holding this, 

Bonilla observed that Smith, discussed above, was distinguishable as it concerned a “much 

different” scenario relating to a person’s “ ‘reasonable expectation of privacy in things 

overheard by the police while standing in a common area of an unlocked apartment building.’ ” 

Bonilla, 2018 IL 122484, ¶ 42 (quoting Burns, 2016 IL 118973, ¶ 58). That is, a drug-sniff 

search was not the same as overhearing a conversation. Yet, Bonilla also clarified that Smith

6

Bonilla added that the United States Supreme Court’s recent decision, Collins v. Virginia, 584 

U.S. ___, 138 S. Ct. 1663 (2018), further supported its determination. Bonilla, 2018 IL 122484, ¶ 28.

In Collins, police entered a partially concealed portion of a driveway abutting the defendant’s house to 

gather evidence (Collins, 584 U.S. at ___, 138 S. Ct. at 1668), and Collins concluded this physical 

intrusion invaded the defendant’s fourth amendment right in the item searched and in the curtilage of 

his home (id. at ___, 138 S. Ct. at 1670-71). 
- 9 -

did not categorically stand for the proposition that “tenants have no expectation of privacy in 

common areas of either locked or unlocked apartment buildings.” (Emphases added.) Id. This 

suggests that the analysis of what constitutes a constitutionally protected area and unlicensed 

physical intrusion in a multiunit building must be more fact-driven and nuanced. See id.; see 

also Burns, 2016 IL 118973, ¶ 98 (Garman, J., specially concurring) (noting that, not every 

police entry into the common area of an apartment building will be a search, and further, that 

shared control over a multiunit building “directly impacts the license that may be granted to 

the police or public”). 

¶ 30 Viewing the particular facts in the present case, we conclude they are less like Bonilla and 

more like Smith, as defendant failed to produce evidence showing the officers’ investigation 

took place in a constitutionally protected area or where he had a reasonable expectation of 

privacy or that it resulted in an unlicensed physical intrusion. Here, Officer Caribou entered 

the unlocked apartment building at a reasonable hour and stepped into what he described was 

the “common area” of the building. Our supreme court has expressly stated that the “term 

‘common area’ suggests an area left open for common or public use,” which necessarily 

negates any expectation of privacy. People v. Janis, 139 Ill. 2d 300, 318 (1990); Smith, 152 Ill. 

2d at 245-46. Defendant did not present any testimony that the unlocked multiunit building 

was customarily locked or had a “no trespass” sign posted outside. Although Officer Caribou 

did not testify in detail about the building’s entryway and composition, the only logical 

inference from his testimony is that he stood in a common area that was accessible to any other 

tenant, landlord, delivery person, or member of the public.7 As such, we cannot say his entry 

was unlawful. See Smith, 152 Ill. 2d at 246.

¶ 31 We thus reject defendant’s contention on appeal that the location where Officer Caribou 

observed the gun hand-off was curtilage, i.e., the area immediately surrounding and associated 

with the home. The record evidence simply does not support that conclusion.8 See United 

States v. Dunn, 480 U.S. 294, 301 (1987) (identifying factors for determining curtilage); cf.

Martin, 2017 IL App (1st) 143255, ¶¶ 3-5, 28 (noting police committed fourth amendment 

violation by reaching inside the outer door frame to obtain incriminating evidence, where the 

defendant’s mother specifically testified at the motion to suppress hearing that the space 

between the interior and exterior doors of her two-flat building was private and not subject to 

trespassing with the exterior door normally locked). That is, there was no evidence that the 

area where Officer Caribou stood was clearly marked “with limited use and restricted access,” 

such that it could constitute an extension of defendant’s home. Cf. Burns, 2016 IL 118973, 

¶ 39 (majority opinion). This similarly supports a conclusion that defendant had no privacy 

expectation in this particular area. 

¶ 32 As to any claim of a physical intrusion, this was not a preplanned goal to gather 

incriminating evidence but the investigation of suspicious behavior in a crime-ridden 

neighborhood. And, no extra-sensory aids were used to observe defendant’s hand-off of what 

police later discovered was an unlicensed handgun. Thus, the police did not exceed the scope 

7

Police may even lawfully enter the curtilage as long as they do not exceed the scope of being there.

That is, a police officer not armed with a warrant may approach a home and knock because that is “no 

more than any private citizen might do.” (Internal quotation marks omitted.) Jardines, 569 U.S. at 8. 8

Defendant argues the trial court found the common area of this apartment building constituted 

“curtilage,” but we do not read such a factual finding in the record. 
- 10 -

of their license to be there. Accordingly, there was no fourth amendment search implicated 

simply by the police officers’ entry into the common area of this unlocked building. That is 

because a search implies prying into hidden places for concealed items, and it is not a search 

to observe that which is in open view. People v. Bridges, 123 Ill. App. 2d 58, 67 (1970). 

Likewise, there was no seizure of defendant’s person, since police had not then restrained 

defendant’s liberty. Again, it was defendant’s burden to show there was a search or seizure 

that violated his fourth amendment rights, and he did not fulfill that burden. See Brooks, 2017 

IL 121413, ¶ 24.

¶ 33 Firearm Presence and Probable Cause to Arrest 

¶ 34 Turning to the next stage of the encounter, just after the door closed behind Officer 

Caribou, both defendant and Turner looked in his direction. Defendant handed Turner a 

firearm, then they fled upstairs to the second floor. Officer Caribou, who wore a vest bearing 

his star number, name, and the word “police,” testified that he “probably” said “police freeze.” 

Defendant went into an apartment unit on the second floor and closed the door behind him. 

Turner, who was locked out, threw the handgun on the second-stair landing. 

¶ 35 The State argues there was criminal activity afoot inside the apartment building, while 

defendant denies this claim. Defendant argued below and, in response to the State’s appeal, 

now maintains that the police lacked reasonable suspicion or probable cause to believe he was 

committing a crime because possession of a gun is not per se illegal and the police failed to 

ask defendant whether he had a valid FOID card or concealed carry license prior to arresting 

him. 

¶ 36 In People v. Aguilar, 2013 IL 112116, ¶ 21, our supreme court specifically held that the 

portion of the AUUW statute categorically banning use and possession of operable firearms 

for self-defense outside the home was unconstitutional. As such, by now it is well-established 

that “the second amendment right to keep and bear arms extends beyond the home,” although 

such a right is subject to meaningful regulation. See id. ¶¶ 20-22. Under that meaningful 

regulation, in order to possess a handgun, a person must carry a FOID card issued in his name 

by the state police. 430 ILCS 65/2 (West 2014); People v. Williams, 266 Ill. App. 3d 752, 759-

60 (1994) (a person in possession of a firearm must have a FOID card on his person because 

mere ownership of a FOID card by a person in possession of a firearm is insufficient to comply 

with the statute). Handguns cannot be transferred to another person unless that person 

“displays” a currently valid FOID card. 430 ILCS 65/3 (West 2014). A person desiring to 

transfer his firearm must first contact the state police to verify that the transferee has a valid 

FOID card. Id.

¶ 37 In addition, the Concealed Carry Act permits an individual to carry a concealed firearm on 

his person provided he has a valid FOID card. 430 ILCS 66/10, 25 (West 2014). A 

“ ‘[c]oncealed firearm’ ” means “a loaded or unloaded handgun carried on or about a person 

completely or mostly concealed from view of the public.” (Emphasis added.) Id. § 5. As a result, 

the Concealed Carry Act implicitly prohibits individuals from carrying fully exposed handguns 

in view of the public. A person with a concealed firearm must at all times possess his concealed 

carry license, unless he is on his own land or in his abode or legal dwelling (i.e., home) or 

acting as an invitee on another person’s land or in his home. Id.§ 10(g); see also Black’s Law 

Dictionary (10th ed. 2014) (defining “abode” as a “home; a place of residence” and defining 

“dwelling-house” as “a residence or abode”). The parties have not cited, nor has our research 
- 11 -

revealed, an Illinois case demonstrating that the common area of a multiunit apartment building 

constitutes “land,” “abode,” or a “legal dwelling,” within the meaning of the Concealed Carry 

Act. See People v. McClure, 218 Ill. 2d 375, 382 (2006) (to effect the legislature’s intent, courts 

should interpret the language of a statute according to its plain and ordinary meaning).9 Thus, 

a person must possess his concealed carry license while in the common area of a multiunit 

apartment building, assuming concealed carry is permitted on that private property. See 430 

ILCS 66/65 (West 2014). 

¶ 38 In addition to defendant’s aforementioned flight, here, defendant’s actions on seeing police 

of handing his gun to another person in the common area of an apartment building, which was 

not his land or home, and then fleeing10 the scene, in totality, are facts that gave police 

probable cause to believe at the very least that defendant illegally possessed the gun. See 

People v. Grant, 2013 IL 112734, ¶ 11 (noting probable cause to arrest exists when the totality 

of the facts and circumstances known to the officer at the time are such that a reasonably 

cautious person would believe that the suspect is committing or has committed a crime); see 

also Williams, 266 Ill. App. 3d at 760 (the trier of fact could infer that the defendant who ran 

from police and threw his gun into the garbage did not have a FOID card while fleeing from 

police). The facts indicated a probability that defendant did not have the necessary gun licenses, 

that he had violated the FOID Card Act and the Concealed Carry Act with an illegal transfer 

to another individual, and that he had violated the Concealed Carry Act by exposing his gun in 

a semi-public place. See People v. Wear, 229 Ill. 2d 545, 564 (2008). That Officer Caribou had 

made multiple arrests for narcotics, gangs, and drugs in this neighborhood and was patrolling 

due to the activities of rival gangs at the time of this incident added to the totality of the 

circumstances justifying probable cause that defendant illegally possessed a firearm. See

People v. Rainey, 302 Ill. App. 3d 1011, 1013 (1999) (noting, for probable cause, the totality 

of the circumstances known to the officer at the time of the arrest includes the officer’s factual 

knowledge and his prior law enforcement experience). 

¶ 39 Thus, the existence of a possible innocent explanation, like defendant’s possession of the 

required gun licenses, did not necessarily negate probable cause. See People v. Geier, 407 Ill. 

App. 3d 553, 557 (2011). Likewise, the possibility that the owners of this residential apartment 

complex condoned concealed carry on their property did not lessen the probability that 

defendant did not in fact have the authority to possess a gun in the first place.11 We note that 

9

We decline defendant’s invitation to characterize the common area of an apartment building as a 

“private residence,” where it does not constitute the place where someone actually dwells or maintains 

his abode. See Black’s Law Dictionary (10th ed. 2014) (defining “residence” as the “place where one 

actually lives” or a “house or other fixed abode”); see also 720 ILCS 5/19-4(a-5) (West 2014) (noting, 

for purposes of proving criminal trespass to a residence, the term “residence” does not include common 

recreational areas or lobbies in a multiunit residential building or complex).

10Section 10(h) of the Concealed Carry Act (430 ILCS 66/10(h) (West 2014)) provides that if an 

officer initiates an investigative stop of an individual, the officer may request his concealed carry 

license, and the individual must then disclose he is in possession of a concealed firearm. On the officer’s 

request, the individual must present the license. Id. Here, as stated, there was no stop because defendant 

was fleeing the scene the entire time. That, too, is a fact adding to probable cause to believe that 

defendant was not in possession of the proper gun licenses. 

11Defendant notes that section 65(a-10) of the Concealed Carry Act (430 ILCS 66/65(a-10) (West 

2014)) states that an owner of private real property “of any type may prohibit the carrying of concealed 
- 12 -

to the extent the trial court found the gun continued to be “partially concealed” when defendant 

handed it to Turner, such a finding has no basis in the record and is an unreasonable inference 

from Officer Caribou’s testimony and, thus, is against the manifest weight of the evidence.

¶ 40 We wish to emphasize that under the current legal landscape, police cannot simply assume 

a person who possesses a firearm outside the home is involved in criminal activity. Likewise, 

they 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 an “arrest first, determine licensure later” method of police patrol. However, 

as set forth above, mere gun possession was not the scenario that presented itself to police in 

this case. The totality of the circumstances suggested criminal activity. 

¶ 41 Abandonment of the Firearm and Arrest

¶ 42 Regardless, given the sequence of events in this case, we agree with the State that defendant 

had abandoned his weapon before police even collected the gun and arrested defendant. 

Notably, abandoned property is not subject to fourth amendment protection since no one can 

have a reasonable expectation of privacy in an abandoned item. Pitman, 211 Ill. 2d at 519-20; 

see also Abel v. United States, 362 U.S. 217, 241 (1960) (noting there is nothing unlawful in 

the government’s appropriation of abandoned property). As such, abandoned property may be 

searched and seized without probable cause. People v. Sutherland, 223 Ill. 2d 187, 230 (2006).

For abandonment, the State must demonstrate by a preponderance of the evidence that the 

defendant’s voluntary words or conduct would lead a reasonable person in the search officer’s 

position to believe that the defendant relinquished his property interest in the item searched or 

seized. Pitman, 211 Ill. 2d at 520. As this is an objective test, it matters not if the defendant 

desires to later reclaim the item. Id. What matters is the external manifestations of the 

defendant’s intent as judged by a reasonable person who possesses the same knowledge 

available to the police. Id. “ ‘We look at the totality of the circumstances, but pay particular 

attention to explicit denials of ownership and to any physical relinquishment of the property.’ ” 

Id. (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)).

¶ 43 Here, contrary to defendant’s suggestion, defendant did not thoughtfully hand his gun to 

Turner for safekeeping with strict directions or indicate that he would later reclaim the gun. 

Cf. Basinski, 226 F.3d at 837-38 (noting where the criminal entrusted his locked briefcase 

containing incriminating evidence to his lifelong friend to hide it on the friend’s remote private 

property in a secure state and to subsequently destroy the briefcase, the criminal did not intend 

to abandon the briefcase). Rather, this is the quintessential abandoned property case, 

characterized by “a fleeing defendant who relinquishes an object *** because discarding the 

item might make it easier for him to later claim that he never possessed it.” Id. at 837. In this 

firearms” on his property but must post the sign conspicuously at the entrance. Under section 65(a-10), 

this requirement does not apply to a “private residence.” Id. Defendant argues the absence of any 

evidence indicating such a sign existed in this case, by default, meant that police had to assume carrying 

a concealed firearm in this apartment complex was permissible and therefore defendant had the proper 

license. As set forth above, we reject defendant’s red-herring argument. Defendant also relies 

extensively on People v. Horton, but that case has been vacated with directions by the supreme court. 

People v. Horton, 2017 IL App (1st) 142019, vacated, No. 122461 (Ill. Nov. 22, 2017). 
- 13 -

case, defendant physically relinquished his property to Turner, while knowing police were in 

hot pursuit, and then shut Turner out of defendant’s purported apartment unit. Defendant thus 

exhibited he did not wish to be caught in possession of the gun. Turner then discarded the gun 

in an area where anyone could have retrieved it. The total circumstances indicate a reasonable 

person in Officer Caribou’s position would believe that defendant had relinquished his 

possessory interest in the gun that police later seized. It was more likely true than not that 

defendant abandoned the handgun. 

¶ 44 Because no search or seizure occurs when police take hold of an abandoned item, the 

validity of the arrest is irrelevant. See People v. Hoskins, 101 Ill. 2d 209, 220 (1984); People 

v. Grant, 38 Ill. App. 3d 62, 68 (1976); Bridges, 123 Ill. App. 2d at 67. That is, the evidence 

here was obtained prior to and independent of defendant’s arrest, and as such, the arguments 

of counsel as to the legality of the arrest merit no further consideration. See Bridges, 123 Ill. 

App. 2d at 67. Accordingly, the trial court’s conclusion that the gun was the “fruit of the 

poisonous tree” was demonstrably incorrect. See Johnson, 237 Ill. 2d at 92 (in order for 

evidence obtained from an illegal arrest to be excluded, there must be some causal nexus 

between the illegal police activity and the disputed evidence). In truth, as the State concurred 

at oral argument, this scenario is more akin to a situation where there is no fruit from an 

“unplanted tree.” See Burns, 2016 IL 118973, ¶ 47 (describing the fruit-of-the-poisonous-tree 

metaphor).

¶ 45 Regardless, where the offense can be said to have been committed in the presence of an 

officer, it has generally been held that the officer may enter the premises without a warrant for 

the purpose of making a warrantless arrest. People v. Eichelberger, 91 Ill. 2d 359, 369 (1982); 

see also Wear, 229 Ill. 2d at 571 (noting an officer’s warrantless nonconsensual entry into the 

defendant’s residence was excused under doctrine of hot pursuit, where at the very least the 

officer had probable cause to arrest at the threshold of the defendant’s home). Given that 

defendant’s actions provided police with probable cause to believe he was committing a felony 

in their presence, the officers rightfully entered defendant’s alleged apartment unit to make a 

warrantless arrest, even assuming the apartment unit was defendant’s and his “girlfriend” did 

not lawfully consent to the police entering. See Wear, 229 Ill. 2d at 571.

¶ 46 Based on the foregoing, defendant abandoned his handgun without implicating a fourth 

amendment search or seizure. Alternatively, police acquired probable cause to sustain 

defendant’s arrest in the apartment unit after observing him hand off the gun and flee. As noted 

throughout this case, it was defendant’s initial burden to show a prima facie case of illegal 

search and seizure, and he failed. See Martin, 2017 IL App (1st) 143255, ¶ 18; see also People 

v. Relwani, 2019 IL 123385, ¶ 18 (noting that a prima facie case is “ ‘[a] party’s production of 

enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor’ ” 

(quoting Black’s Law Dictionary 1310 (9th ed. 2009))).

¶ 47 Defendant’s Expectation of Privacy in the Apartment Unit

¶ 48 Finally, even assuming police conducted a search or seizure in violation of defendant’s 

fourth amendment rights, defendant would fare no better because he failed to establish a 

reasonable expectation of privacy in the actual apartment unit and, thus, in the building itself. 

The fourth amendment’s constitutional safeguards are personal protections that may not be 

vicariously asserted and, thus, not every aggrieved defendant can seek to exclude evidence 

allegedly obtained in violation of the fourth amendment. People v. Ervin, 269 Ill. App. 3d 141, 
- 14 -

146 (1994). Again, the defendant bears the burden of establishing that he held a reasonable 

expectation of privacy, i.e., one that society is prepared to recognize as reasonable, in the place 

searched or the property seized. Id. Factors for determining a reasonable expectation of privacy 

include whether the defendant was legitimately present in the area searched, his possessory 

interest in the area or property seized, his prior use of the area searched or property seized, his 

ability to control or exclude others’ use of the property, and his subjective expectation of 

privacy. Pitman, 211 Ill. 2d at 520-21. 

¶ 49 Here, defense counsel noted defendant had entered the apartment unit, locking the door 

behind him, and the woman inside (who was his supposed girlfriend) eventually reopened the 

door for the police. Defense counsel thus implicitly argued that defendant maintained a 

possessory interest in the apartment unit and the ability to control or exclude others from the 

property. The trial court credited this argument as establishing defendant’s reasonable 

expectation of privacy. 

¶ 50 The State now argues this evidence was insufficient, especially where it showed defendant 

did not reside at that address and his relationship with the woman who answered the door was 

merely assumed. Defendant counters that, with the trial court’s finding, the burden of 

production then shifted to the State. He argues the State, however, failed to rebut the evidence 

and is now “trying to game the system” and engaging in “prejudicial sandbagging” by raising 

the matter on appeal. We disagree. 

¶ 51 In addition to the above factors, it is well-established that while an overnight guest in a 

home may claim the protection of the fourth amendment, one who is merely present with the 

consent of the householder may not. Minnesota v. Carter, 525 U.S. 83, 90 (1998); People v. 

Williams, 186 Ill. App. 3d 467, 472 (1989) (“Merely because the defendant is occasionally on 

the premises as a guest or invitee, and is on the premises at the time of the allegedly illegal 

search, does not confer standing.”). In Ervin, for example, this court held that the defendant’s 

weekly presence as a guest in his ex-wife’s home was insufficient to establish a reasonable 

expectation of privacy, where he did not reside there, was not even a daily visitor, did not store 

clothing there, and did not spend nights there. Ervin, 269 Ill. App. 3d 141. This was in spite of 

him listing her address on his driver’s license and other identification. See also People v. 

Parker, 312 Ill. App. 3d 607, 613 (2000) (noting, in Illinois, the storage of personal effects and 

other indicia of residence demonstrate an expectation of privacy in non-overnight guests); 

Williams, 186 Ill. App. 3d at 471 (concluding the defendant had no reasonable expectation of 

privacy in his girlfriend’s apartment where he did not live there, spent only one night a week 

there, did not take meals or keep clothes there, and had his mailing address elsewhere). 

¶ 52 The evidence in this case established defendant’s presence in and access to the apartment 

unit, but it did not establish whether the apartment was itself locked before he entered, how 

often he was in the apartment, whether he planned to stay there for more than a brief period of 

time, or whether he kept any possessions there. The evidence therefore was insufficient to 

demonstrate he had a reasonable expectation of privacy in the actual apartment unit and in the 

apartment building itself. To the extent the trial court found otherwise, its finding was against 

the manifest weight of the evidence. The record also reveals that the State argued in its motion 

for a directed finding the issue of defendant’s privacy interest in the unit and the matter was 

not waived. In any event, this particular issue does not warrant remand for a continuation of 

the suppression hearing because, as stated, there was no fourth amendment search or seizure 
- 15 -

implicated. Thus, defendant cannot ultimately succeed on a motion to suppress. 

¶ 53 CONCLUSION

¶ 54 For the reasons stated, we reverse the judgment of the circuit court granting defendant’s 

motion to quash his arrest and suppress evidence. We remand the case for further proceedings 

consistent with this opinion.

¶ 55 Reversed and remanded.