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IL – GUN RIGHTS – Fourth Amendment — probable cause

CHICAGO LAW BULLETIN.COM May 27-2020 – Where the police see a firearm in defendant’s unoccupied vehicle, that alone is not sufficient to grant probable cause that a crime has been committed and allow the officers to seize the weapon and arrest defendant absent evidence that defendant is not permitted to possess a firearm. The 1st District Appellate Court reversed the decision of Cook County Circuit Judge Joan Margaret O’Brien.

James Thomas was approached by two police officers after parking his car at around 6:30 p.m. on Feb. 17, 2015. Thomas alleged that he had just come from picking up his brother, Steve Harris, and driving home and denied committing any traffic offenses. The two Chicago police officers, O’Brien and Bansley stated that they saw Thomas turn without signaling, and “pursued” but that Thomas parked and got out of his vehicle before they caught up with him. They parked behind Thomas, boxing his car in, and approached.

O’Brien spoke to Thomas while Bansley looked in the car and saw five inches of an object he identified as the extended magazine of a handgun. O’Brien then handcuffed Thomas and Harris. While their backs were turned, Bansley opened the vehicle and recovered the firearm.

Bansley observed O’Brien release Harris and state afterwards, that Thomas had admitted the gun was his, something Thomas later denied. Thomas was arrested and charged with three counts of aggravated unlawful use of a weapon.

Before trial he moved to quash the arrest and suppress evidence, arguing that he was not in the car at the time the gun was seen in it, and that the officers never asked if he possessed a firearm owner identification (FOID) card. But the trial court denied the motion, finding that the weapon being in plain view determined that it could be seized regardless of whether the officers were in danger from it.

Thomas was found guilty and sentenced to one year in prison. He appealed. On appeal, Thomas argued that the police lacked probable cause to arrest him and weren’t entitled to seize the firearm for safety reasons because the car was unoccupied by the time police approached, with Thomas and Harris outside. The appellate court agreed, finding Thomas was walking away from his car to his home, he did not run and the gun was neither on his person nor in his immediate control.  [full article]

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