2021 IL App (1st) 191901-U

No. 1-19-1901 

December 14, 2021 

Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

CHARLES EVANS, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County. 

No. 17 CR 7356 

Honorable 

Michael J. Kane, 

Judge Presiding. 

JUSTICE HOWSE delivered the judgment of the court.

Justices Ellis and Burke concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s conviction for being an armed habitual criminal is affirmed where the 

trial court’s denial of his motion to suppress evidence was proper because the police 

officer recovered the firearm from defendant after defendant stated he had a gun; 

defendant’s challenge based on a Miranda violation is forfeited because it was not 

litigated before the trial court.

¶ 2 Following a bench trial, defendant Charles Evans was convicted of being an armed habitual 

criminal (720 ILCS 5/24-1.7(a) (West 2016)) and sentenced to the mandatory minimum term of 

six years’ imprisonment. On appeal, defendant contends the trial court erred on two grounds when 
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it denied his motion to suppress evidence. Defendant first argues that the police officer conducted 

an unlawful pat-down search of his person because the officer had no reasonable articulable 

suspicion that defendant was armed and dangerous. Defendant also argues that his statement to 

police during the traffic stop that he possessed a gun was made in response to an improper custodial 

interrogation by the officer before defendant was advised of his Miranda rights. We affirm.

¶ 3 Defendant was charged with one count of being an armed habitual criminal, two counts of 

unlawful use or possession of a weapon by a felon (UUWF), and four counts of aggravated 

unlawful use of a weapon (AUUW). Defendant filed a pretrial “Motion to Suppress Physical 

Evidence.” In his written motion, defendant argued that on April 28, 2017, Chicago police officers, 

without lawful authority, illegally stopped a vehicle in which defendant was a passenger. 

Defendant asserted that the officers thereafter illegally searched him without lawful authority and 

seized certain property that might incriminate him, specifically, a handgun and bullets. Defendant 

alleged that the police had no lawful authority to conduct the search and seizure because: (1) they 

did not have a warrant or any other authority; (2) there were no exigent circumstances that excused 

proceeding without a warrant; (3) no consent was given for the arrest, search, and seizure; and (4) 

the search and seizure were not incident to nor contemporaneous with the valid arrest of defendant. 

Defendant argued that the arrest, search, and seizure violated his rights under the fourth 

amendment of the United States Constitution (U.S. Const., amend. IV), the Illinois Constitution

(Ill. Const. 1970, art. I, §§ 2, 6, 10), and the search and seizure statutes of the Illinois Code of 

Criminal Procedure (Code) (725 ILCS 5/108-1 et seq. (West 2016)). Defendant asked the court to 

suppress the seized evidence and all testimony relating to that evidence.
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¶ 4 At the hearing on defendant’s motion to suppress, defense counsel orally amended the 

written motion to also suppress a statement defendant made to police. Counsel added the words 

“my statement” to the prayer for relief in the written motion where defendant had asked that the 

seized evidence and related testimony be suppressed. The State acknowledged the amendment. 

The prosecutor stated, “I believe it’s not a Fifth Amendment issue. Still falls under his Fourth 

Amendment claims in the body of the motion.” Defense counsel did not disagree with the 

prosecutor’s statement.

¶ 5 Defendant testified that about 11 p.m. on April 28, 2017, he was a passenger in Jayna 

Marshall’s vehicle. Marshall was driving, defendant was in the front passenger seat, and 

defendant’s five-year-old son was also in the vehicle. Marshall drove northbound on Indiana 

Avenue through the green light at the intersection with 137th Street. Marshall told defendant that 

a vehicle had pulled behind them with its lights turned off. Defendant looked in the outside mirror 

on the passenger door and observed a dark SUV with its headlights off behind them. After they 

drove over the Little Calumet River, the SUV behind them activated its flashing emergency lights. 

Marshall pulled her vehicle over to the side of the road slightly north of 134th Street. Two police 

officers approached Marshall’s vehicle on foot, one on the driver’s side and one on the passenger’s 

side. The officers were not in uniform. Defendant assumed they were police officers because they 

were wearing vests and walkie-talkies and had guns.

¶ 6 The officer on the driver’s side asked Marshall for her driver’s license. She did not have it. 

The officer on the passenger’s side looked inside Marshall’s vehicle with a flashlight. The officer 

on the driver’s side asked defendant if he had a driver’s license. Defendant replied, “no, sir.” That 

same officer asked defendant if he had a state identification card. Defendant replied, “yes,” and 
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the officer asked him to produce it. Defendant told the officer that his identification card was inside 

his wallet in his right pocket, and he was going to retrieve his wallet. Defendant removed his wallet 

from his right front pocket and removed his identification card from his wallet. The officer on the 

driver’s side took Marshall’s identification card from her. Defendant stated that, at that time, he 

had not been doing anything wrong, he had not violated any laws, and the police did not claim to 

have a warrant to search or arrest him. 

¶ 7 Defendant handed his identification card to the officer on the passenger’s side, later 

identified as Officer Joseph Byrne. Byrne took the identification card, grabbed defendant’s wrist

through the open window, and told him to exit the vehicle. Byrne opened the passenger’s door and 

ordered defendant out of the vehicle. As defendant exited the vehicle, Byrne used “some force” to 

get him out. Byrne did not remove his grip from defendant’s wrist. After defendant exited the 

vehicle, Byrne brought defendant’s wrist behind his back, told defendant to place his other arm 

behind his back, and handcuffed defendant. Byrne walked defendant a couple feet away from the 

vehicle and left him standing on the sidewalk. Byrne returned to Marshall’s vehicle and searched 

inside from the front to the back on the passenger’s side. The other officer removed Marshall from 

the vehicle and searched the driver’s side. Marshall was standing at the rear of her vehicle. 

¶ 8 Byrne walked back to defendant, stood behind him, and told defendant to spread his feet

apart. Defendant was still holding his wallet in his hand which was handcuffed behind his back.

Byrne asked defendant what was in his hand. Defendant replied, “[m]y wallet.” Byrne next asked 

defendant what was in his back pocket. Defendant replied, “mail.” Byrne then asked defendant, 

“[d]o you have anything on you that you shouldn’t have?” Defendant testified, “In the process, he 

was patting my pocket, my front right pocket, and he was searching me.” At that point, Byrne 
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recovered a handgun loaded with ammunition from the back of defendant’s left hip. Defendant 

confirmed Byrne had been searching him before Byrne recovered the gun. Defendant denied that 

he said anything to Byrne before Byrne recovered the weapon. He further denied that he ever made 

any statements about the gun. Defendant also denied that the officers questioned him about the 

gun later that night. 

¶ 9 On cross-examination, defendant acknowledged that when Byrne asked him, “[d]o you 

have anything on you?” defendant replied, “I got a gun on my hip.” Defendant further 

acknowledged he made that statement before Byrne recovered the gun from him.

¶ 10 The State moved for a directed finding arguing that defendant’s evidence did not establish 

a fourth amendment violation. The State argued the police had a basis for the detention because 

Marshall was driving without a driver’s license. It argued that once the vehicle was stopped, the 

police had authority to remove all the passengers from the vehicle. The State further argued that it 

was immaterial if defendant was handcuffed because such action does not turn a Terry stop into a 

detention, but instead, is only one factor to consider. The State asserted that the only factor that 

turns a traffic stop or Terry stop into an arrest is the length of the detention, and here, there was no 

evidence regarding the length of the detention. The State argued that once defendant told Byrne 

he had a gun on his hip, the officer had a basis to recover that gun. The trial court denied the State’s 

motion for a directed finding. 

¶ 11 The State called Byrne as a witness who testified that shortly after 11 p.m. on April 28, 

2017, defendant was the front seat passenger in a vehicle stopped by police for a cracked 

windshield. Byrne identified defendant in court. The driver of the vehicle was not able to produce 

a driver’s license. Byrne asked defendant to exit the vehicle. The following colloquy then occurred:
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“[PROSECUTOR:] Q At some point did you have interaction with the defendant? Did 

you ask him if he had anything on him?

[BYRNE:] A Yes.

Q Did the defendant tell you that he had a gun on him?

A Yes.

Q Did you recover that gun? 

A Yes.”

¶ 12 On cross-examination, Byrne testified that three officers were present for the traffic stop. 

Byrne and another officer approached the passenger’s side of Marshall’s vehicle and a third officer 

approached the driver’s side. Byrne asked defendant for his license or identification. Defendant 

retrieved his identification card from his wallet and gave it to Byrne. After defendant exited 

Marshall’s vehicle, Byrne asked him “if he possessed anything illegal.” Defendant told Byrne he 

had a gun on his hip. Byrne recovered the weapon from the side of defendant’s hip. Byrne 

confirmed that he did not see the weapon until after defendant told him he had a gun on him. 

Defendant subsequently made statements to police regarding the gun. Defendant was arrested at 

11:14 p.m.

¶ 13 In closing argument, defense counsel argued that defendant was not engaged in any illegal 

activity when he was detained by police. Counsel argued that Byrne began searching defendant 

before defendant made any kind of statement. The prosecutor objected, asserting that counsel had 

misstated the evidence. The court overruled the objection and allowed counsel to continue with 

his argument. Counsel argued that defendant testified that Byrne asked him if he had anything 

illegal on him while Byrne was patting him down, and defendant stated that he had a gun while he 
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was being searched. Counsel noted that defendant was handcuffed and argued that Byrne 

conducted a custodial search and custodial interrogation.

¶ 14 The State adopted its argument from its motion for a directed finding. The prosecutor 

clarified, “[w]e are here to determine whether or not there was a Fourth Amendment violation[.]” 

The State argued that the vehicle was lawfully stopped for a cracked windshield. It reiterated that 

the police can order all the occupants out of a vehicle. The State argued there was no evidence 

regarding the duration of the stop, but it appeared to have been “a minute or two.” The State pointed 

out that both Byrne and defendant testified that Byrne asked defendant if he had a gun, defendant 

said he did, and the gun was then recovered. The State argued the recovery of the gun was the 

basis for defendant’s arrest and that the “two-minute detention” at the traffic stop was not a 

custodial arrest. The State further argued, “at the last minute counsel brought up some aspects of 

custodial interrogation. That’s not present at all and that forms a completely different kind of 

analysis.”

¶ 15 In response, defense counsel argued that the police may order people out of a vehicle, but 

they cannot handcuff the occupants of a vehicle. Counsel argued Byrne went beyond the scope of 

a Terry stop, and that handcuffing defendant constituted a custodial detention. 

¶ 16 The trial court found that the testimony from defendant and Byrne was not “terribly 

inconsistent.” The court then stated:

“I am going to deny the motion for the following reasons: Based on the totality of 

the circumstances, the court finds that once the officers determined that neither of the 

occupants had a license and could legitimately drive the car, they have no basis but to get 

them out of the car. How they get them out of the car doesn’t become dispositive for me. 
No. 1-19-1901 

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Frankly at this time of the night, it’s not surprising to me that they would cuff somebody 

in that quick a manner after they got them out of the car.

There’s a statement made. Exactly when the statement is made is up in the air, but 

I don’t think that’s terribly dispositive because I think under the circumstances the officers 

had a right to pat down both of the occupants of the car. So the gun would have been found 

anyway even if the defendant hadn’t made the statement.”

¶ 17 Defendant filed a motion to reconsider the denial of his motion to suppress. Defendant 

conceded that the traffic stop was lawful and that Byrne acted within his authority when he ordered 

defendant out of the vehicle. Defendant argued that there was no testimony that justified Byrne’s 

search of his person where Byrne did not testify that he feared for his safety. Defendant stated that 

there was no testimony that he said or did anything to raise a suspicion that he was a threat to 

Byrne. Defendant argued that, at the time of the search, he was handcuffed and could not 

reasonably be considered a threat. Defendant further argued that his statement that he had a gun in 

his waistband did not justify the search because his statement occurred during the illegal search 

and was a product of that search. In addition, defendant argued that the principle of “inevitable 

discovery” did not apply to this case because there was no evidence Byrne would have discovered 

the gun other than by the illegal search.

¶ 18 In ruling on the motion, the trial court stated, “I will not deny that this case is close.” The 

court noted that the vehicle was stopped for a valid traffic offense and that no one in the vehicle 

had a driver’s license. The court stated that, had defendant had a license, it might have felt 

differently about the search because the police could have turned the vehicle over to him. The court

stated that it was “a little murky” as to what happened after defendant exited the vehicle. It found, 
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however, that there was “no doubt” defendant stated he had a gun, and that statement was in 

response to Byrne’s question about whether he had something on him. The court then stated:

“one of the things that complicates this case is the existence of the statute under the 

Carry and Conceal Act which allows the police officers to ask people if they are carrying 

a weapon. That seems to be pretty clear. It’s mentioned twice in the statute. So it doesn’t – 

this case doesn’t rise to the level, from my standpoint, of where a Defendant is patted down 

because of some suspicion necessarily; but it’s a combination of factors. First of all, it is 

late at night. Secondly, there’s nobody on the street. Thirdly, the police are protecting 

themselves. And it’s one thing to say that he is cuffed, okay, and he is not a threat; but 

that’s an easy thing to say. That’s not necessarily the truth. Sometimes if people have 

weapons on them and they’re cuffed, they can still reach the weapons. So I don’t think the 

police acted unreasonably.” 

¶ 19 In addition, the court found that another factor to consider was that the amount of time 

involved in obtaining the gun was “very, very small.” Based on the fact that defendant was 

legitimately asked out of the vehicle, the trial court denied defendant’s motion to reconsider.

¶ 20 The parties agreed to proceed by way of a stipulated bench trial. The State presented a 

stipulation that the testimony presented at the motion to suppress hearing covered all the issues in 

the case, and that testimony would be the same evidence the court would hear at trial. The State 

presented the transcript from the suppression hearing as a stipulated exhibit. The State presented 

an additional stipulation that it would introduce certified copies of defendant’s prior convictions 

for attempted first degree murder and manufacture and delivery of cocaine to serve as the predicate 

offenses for the armed habitual criminal offense.
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¶ 21 The trial court found defendant guilty on all counts. In his motion for a new trial, defendant 

argued that the trial court erred when it denied his motion to suppress evidence and motion to 

reconsider that ruling. The trial court denied the posttrial motion. The court merged all counts for 

UUWF and AUUW into the armed habitual criminal offense and sentenced defendant to the 

mandatory minimum term of six years’ imprisonment.

¶ 22 On appeal, defendant contends the trial court erred when it denied his motion to suppress 

evidence. Defendant argues that Byrne conducted an unlawful pat-down search because the officer 

had no reasonable articulable suspicion that defendant was armed and dangerous. Defendant also 

argues that his statement that he possessed a gun was made in response to an improper custodial 

interrogation by Byrne before defendant was advised of his Miranda rights. 

¶ 23 Our review of the trial court's ruling on a motion to suppress evidence presents questions 

of both fact and law. People v. Richardson, 234 Ill. 2d 233, 251 (2009). The trial court's factual 

findings are given great deference and will not be disturbed on review unless they are against the 

manifest weight of the evidence. People v. Lindsey, 2020 IL 124289, ¶ 14. However, the court’s 

ultimate ruling on the motion is a question of law which we review de novo. Id. At a hearing on a 

motion to suppress, the trial court is responsible for determining the credibility of the witnesses, 

weighing the evidence, and drawing reasonable inferences therefrom. People v. Ballard, 206 Ill. 

2d 151, 162 (2002). The court’s factual findings are against the manifest weight of the evidence 

only where the opposite conclusion is apparent, or where the findings are arbitrary, unreasonable, 

or not based on the evidence. People v. Aljohani, 2021 IL App (1st) 190692, ¶ 37. This court “may 

affirm the trial court’s ruling on a suppression motion ‘on any basis appearing in the record, 
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whether or not the trial court relied on that basis or its reasoning was correct.’ ” Id. ¶ 38 (quoting 

People v. Daniel, 2013 IL App (1st) 111876, ¶ 37).

¶ 24 On a motion to suppress evidence, the burden of proving that the search and seizure were 

unlawful rests with the defendant. 725 ILCS 5/114-12(b) (West 2016); People v. Cregan, 2014 IL 

113600, ¶ 23. “If the defendant makes a prima facie showing that the evidence was obtained in an 

illegal search or seizure, the burden shifts to the State to provide evidence to counter the 

defendant’s prima facie case.” Cregan, 2014 IL 113600, ¶ 23. Ultimately, however, the burden of 

proof remains with the defendant. Id.

¶ 25 Initially, defendant states that he is not challenging the validity of the traffic stop or Byrne’s 

order to exit the vehicle. He argues, however, that Byrne conducted an unlawful pat-down search 

because Byrne had no reasonable articulable suspicion that defendant was armed and dangerous. 

Defendant argues that Byrne did not testify about any facts regarding defendant’s conduct that 

could have reasonably created a fear or threat of violence that justified the pat-down search. He

asserts that the trial court found Byrne searched defendant based on a concern for officer safety, 

but the evidence did not support that finding. Defendant notes that Byrne testified that he did not 

see the gun until defendant told him about it. Defendant argues, however, that Byrne began 

searching him before he asked if defendant had any contraband on him and before defendant stated 

that he had a gun.

¶ 26 The State responds that the trial court properly denied defendant’s motion to suppress 

because the evidence showed that the pat-down and recovery of the gun occurred after defendant 

told Byrne he had a gun on his hip. Relying on People v. Gonzalez, 184 Ill. 2d 402 (1998), the 

State argues that, once defendant stated that he possessed a firearm, Byrne had the authority to 
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search defendant and recover that firearm based on a concern for officer safety. The State further 

argues that, even if defendant had not stated that he possessed a weapon, the search would have 

been lawful based on the totality of the circumstances, including that the traffic stop occurred late 

at night in a deserted area with a small child inside the vehicle, and both the driver and defendant 

were outside of the vehicle because neither of them possessed a driver’s license. In addition, the 

State asserts that the legality of a pat-down search is evaluated under an objective standard, and 

Byrne’s subjective belief regarding the safety of the situation is only one factor that may be 

considered when evaluating the search.

¶ 27 The fourth amendment of the United States Constitution and the Illinois Constitution

protect citizens from unreasonable searches and seizures in their homes, effects, and persons. U.S. 

Const., amend. IV; Ill. Const. 1970, art. I, § 6. Reasonableness is measured with an objective 

standard by analyzing the totality of the circumstances. People v. Moss, 217 Ill. 2d 511, 518 (2005). 

Generally, to be deemed a reasonable search and seizure under the fourth amendment, police must 

obtain a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). 

However, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized an exception to the 

warrant requirement allowing police officers to briefly stop suspicious individuals to make 

reasonable inquiries to confirm or dispel their suspicions of criminal activity. The reasonableness 

of a traffic stop and detention of the vehicle’s occupants are reviewed under the Terry principles. 

People v. Jones, 215 Ill. 2d 261, 270 (2005).

¶ 28 Whether a police officer can search an occupant of a vehicle is a separate consideration 

from the legality of the vehicle stop that is also reviewed for reasonableness under the Terry

principles. Gonzalez, 184 Ill. 2d at 421. The Terry Court held that a police officer may conduct a 
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pat-down search of a person he is investigating at close range to determine if that person is carrying 

a weapon where the officer justifiably believes the person is armed and dangerous. People v. 

Sorenson, 196 Ill. 2d 425, 432 (2001). The sole justification for a pat-down search under Terry is 

for the protection of police and others in the area, not to discover evidence. People v. Flowers, 179 

Ill. 2d 257, 263 (1997). A search that exceeds the boundaries necessary for determining if a suspect 

is armed is unreasonable under Terry, and any evidence recovered during such a search will be 

suppressed. Sorenson, 196 Ill. 2d at 432. Although the reasonableness of the pat-down search is 

assessed under an objective standard, the police officer’s subjective belief regarding the safety of 

the situation is one of the factors that may be considered among the totality of the circumstances 

known to the officer at the time of the search. Gonzalez, 184 Ill. 2d at 422.

¶ 29 In determining whether a pat-down search is reasonable, an officer does not need to be 

absolutely certain the person is armed; instead, the question is whether, under the circumstances, 

a reasonably prudent person would believe that his safety or that of others was in danger. People 

v. Colyar, 2013 IL 111835 ¶ 36 (citing Terry, 392 U.S. at 27). In each case, consideration must be 

given to the specific reasonable inferences that the officer is entitled to draw from the facts in light 

of his experience. Sorenson, 196 Ill. 2d at 433. The limitations of a search in any particular case 

depends upon the factual circumstances of that case. Id. at 440 (citing Terry, 392 U.S. at 29). When 

an officer asks a person during a traffic stop whether he is in possession of a weapon and receives 

an affirmative response, it is reasonable for the officer to pat down the person to uncover the 

weapon. Gonzalez, 184 Ill. 2d at 423. 

¶ 30 Here, the record reveals that Officer Byrne recovered the weapon from defendant after 

defendant told the officer he had a gun on his hip. Byrne testified that after defendant had exited 
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the vehicle, Byrne asked defendant “if he possessed anything illegal.” Defendant told Byrne he 

had a gun on his hip. Byrne then recovered the weapon from the side of defendant’s hip. Byrne 

testified that he did not see the weapon until after defendant told him he had a gun on him. 

Defendant also testified that Byrne asked him, “[d]o you have anything on you that you shouldn’t 

have?” Defendant acknowledged that he replied, “I got a gun on my hip.” Defendant also 

acknowledged he made that statement before Byrne recovered the gun from him. The trial court 

found there was “no doubt” defendant stated he had a gun, and that defendant’s statement was 

made in response to Byrne’s question about whether he had something on him. The record shows 

that the trial court’s finding was not against the manifest weight of the evidence. Aljohani, 2021 

IL App (1st) 190692, ¶ 37. Moreover, when defendant told Byrne he was in possession of a gun, 

the officer then had the authority to pat down defendant and recover that weapon. Gonzalez, 184 

Ill. 2d at 423. Based on this record, we find that Byrne’s recovery of the firearm was not the result 

of an illegal pat-down search. Accordingly, the trial court’s denial of defendant’s motion to 

suppress evidence was proper. 

¶ 31 Defendant next contends the trial court erred when it denied his motion to suppress because 

his statement to Byrne that he possessed a gun was made in response to an improper custodial 

interrogation by the officer before defendant was advised of his Miranda rights. The State responds 

that defendant forfeited this issue because it was not raised in his motion to suppress evidence, his 

motion to reconsider the trial court’s denial of that motion, or his motion for a new trial. 

Alternatively, the State argues that Miranda warnings were not required under the circumstances 

in this case which involved general on-the-scene roadside questioning during a traffic stop rather 

than a custodial interrogation. Gonzalez, 184 Ill. 2d at 423.
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¶ 32 In reply, defendant argues the issue is not forfeited because he raised the admissibility of 

his statement several times in the trial court, including: (1) when counsel argued at the suppression 

hearing that Byrne’s pat down was “a custodial search and a custodial interrogation;” (2) in his 

written motion to reconsider when he argued that the State could not use his statement that he had 

a gun in his waistband to justify the search; and (3) in his motion for a new trial when he argued 

that his statement should have been excluded from trial. Based on these assertions, defendant 

claims the issue was properly raised in the trial court, “regardless of the specific arguments he 

made below.” Alternatively, defendant argues that even if the issue is forfeited, this court may still 

consider it because forfeiture principles are binding on the parties, not the reviewing court. 

Defendant also asserts, without argument, that this court may consider the issue as plain error.

¶ 33 The record indicates that defendant never raised a Miranda challenge before the trial court. 

Defendant has raised this claim for the first time in this appeal. This court has previously held that 

where a defendant fails to raise an allegation in his written motion to suppress and does not raise 

the issue in his posttrial motion, the issue is waived. See People v. Williams, 272 Ill. App. 3d 868, 

876 (1995); People v. Cleesen, 177 Ill. App. 3d 103, 114 (1988).

¶ 34 In analyzing the contents of a motion to suppress, the Fourth District of this court stated: 

“ ‘A motion to suppress is, in effect, a pleading to the extent that it frames the issues 

to be determined in a pretrial hearing on the motion. The fundamental role of a pleading is 

to give an opposing party notice of the pleader’s position concerning the facts and law so 

that the opposing party can begin to prepare his defense. A pleading thus both defines and 

limits the areas of consideration at a trial or other evidentiary hearing ***, by enabling the 
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court to determine the relevance of offered evidence.’ ” People v. Ramirez, 2013 IL App 

(4th) 121153, ¶ 60 (quoting State v. Johnson, 519 P.2d 1053, 1057 (Or. Ct. App. 1974)).

¶ 35 Our supreme court has held that where a defendant raises arguments on appeal that are 

distinct from the arguments he raised in his motion to suppress before the trial court, the defendant 

has not adequately preserved his claims for review. People v. Hughes, 2015 IL 117242, ¶ 45. In 

Hughes, the defendant, who was charged with and ultimately convicted of first degree murder, 

filed a motion to suppress claiming that his confession was involuntary. Id. at ¶¶ 1-2. Before the 

trial court, the defendant argued that his statements were involuntary because the police questioned 

him off camera and without advising him of his Miranda rights, and due to physical coercion from 

handcuffs being kept on him for an excessively long time. Id. at ¶ 2. The trial court denied his 

pretrial motion to suppress and denied his posttrial motion where the defendant raised the issue 

again. Id. On appeal, the defendant argued that his confession was involuntary and should have 

been suppressed for reasons different than what he argued before the trial court, including his age, 

educational level, sleep and food deprivation, prior substance abuse, deceptive conduct by police, 

and lack of experience with the criminal justice system. Id. at ¶ 25. The State argued that the 

defendant waived the issue for appeal because he did not present these reasons for suppression to 

the trial court. Id. at ¶ 26. The appellate court, with one justice dissenting, found that the issue was 

not forfeited because he had raised the issue of voluntariness in his posttrial motion. The court 

concluded that the confession should have been suppressed and reversed and remanded for a new 

trial. Id. at ¶ 27.

¶ 36 On appeal, the supreme court found that the defendant’s reasons for suppression in the trial 

and appellate courts were almost entirely distinct from one another. Id. at ¶ 40. The court noted 
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that the defendant presented no evidence or arguments to the trial court for the claims he raised on 

appeal. Id. at ¶ 41. The court therefore found that when the defendant failed to raise his claims in 

the trial court, he deprived the State of its opportunity to present evidence and arguments 

challenging those claims. Id. at ¶ 46. The court further found that the defendant also deprived the 

trial court of the opportunity to decide the issue on those bases. Id. The court concluded that the 

defendant did not adequately preserve his claims for appeal, and that the trial court did not err 

when it denied the defendant’s motion to suppress. Id. at ¶ 47.

¶ 37 Similar to Hughes, in this case, defendant has raised an issue on appeal that was not raised 

in his motion to suppress and not litigated before the trial court. Defendant argues that his statement 

that he had a gun on his hip was inadmissible because it was made in response to an illegal custodial 

interrogation by Byrne prior to being advised of his Miranda rights. Defendant argues that Byrne 

forcibly removed him from the vehicle, immediately handcuffed him with no articulable basis for 

doing so, did not advise him of his Miranda rights, and asked him a question he should have known 

was reasonably likely to illicit an incriminating response. 

¶ 38 Because the Miranda issue was not litigated below, the trial court never had the opportunity 

to address defendant’s argument or rule on the issue. The record shows that when defense counsel 

orally amended the motion at the suppression hearing by adding the words “my statement” to the 

prayer for relief, the prosecutor stated, “I believe it’s not a Fifth Amendment issue. Still falls under 

his Fourth Amendment claims in the body of the motion.” Defense counsel did not disagree with 

this statement. In closing, the prosecutor argued, “[w]e are here to determine whether or not there 

was a Fourth Amendment violation[.]” In response to counsel’s closing remark that Byrne had 

conducted a custodial search and custodial interrogation, the prosecutor argued, “at the last minute 
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counsel brought up some aspects of custodial interrogation. That’s not present at all and that forms 

a completely different kind of analysis.” We therefore find defendant failed to preserve the issue 

for appeal, and it is forfeited. Hughes, 2015 IL 117242, ¶ 47. 

¶ 39 Defendant asserts, in two sentences, that admission of his statement obtained during a 

custodial interrogation prior to being advised of his Miranda rights constitutes plain error, and 

therefore, this court may review the issue even if it is forfeited. He makes no further plain error 

argument. 

¶ 40 Our supreme court has repeatedly held that “when a defendant fails to present an argument 

on how either of the two prongs of the plain-error doctrine is satisfied, he forfeits plain error 

review.” People v. Hillier, 237 Ill. 2d 539, 545-46 (2010) (citing People v. Nieves, 192 Ill. 2d 487, 

502-03 (2000)). The court explained that “[a] defendant who fails to argue for plain-error review 

obviously cannot meet his burden of persuasion.” Hillier, 237 Ill. 2d at 545. The court further 

advised that where the appellate court finds that the defendant forfeited the issue, it “must hold the 

defendant to his burden of demonstrating plain error.” Id. at 549.

¶ 41 Here, defendant has presented no argument on how either prong of the plain error doctrine 

is satisfied. Defendant’s conclusory statement that plain error applies fails to satisfy his burden of 

persuasion. We therefore honor defendant’s forfeiture of the issue.

¶ 42 Based on this record, we conclude that Byrne’s recovery of the firearm after defendant 

stated that he had a gun on his hip was reasonable and lawful. Accordingly, the trial court’s denial 

of defendant’s motion to suppress evidence was proper.

¶ 43 For these reasons, we affirm the judgment of the circuit court of Cook County.

¶ 44 Affirmed.