This case is one of several decided this year where the holdings of United States v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and People v. Aguilar, 2 N.E. 3d 321 (Ill. 2013) declaring certain firearm possession statutes in violation of the Second Amendment spill over into Fourth Amendment jurisprudence because the sight of a firearm cannot necessarily be used for the purposes of establishing probable cause to arrest or even reasonable suspicion to conduct a Terry stop.
Officers are watching a suspect walk at night through high narcotic and gang area. They observe the suspect look at the plainclothes officers during nighttime, turn and walk away, and hold his waistband in the front in such a manner that suggested he might have a weapon. When the officers approached, the suspect began running. The officers got a hold of the Defendant, felt the weapon, and arrested the Defendant.
The Appellate Court held that this violated the Fourth Amendment. The officers saw the Defendant violating no laws, and the suspicion of the Defendant holding his waistband didn’t cause suspicion that the Defendant is violating the law because of the aforementioned Second Amendment holdings. Further, given that it was night time and it was not evident that the Defendant knew these people were officers, the acts of turning from the officers and running away when initially approached did not give the officers cause to stop the Defendant.
These cases will have implications for Fourth Amendment litigation starting next year when marijuana is legalized.
The case is People v. Johnson, 2019 App. (1st) 161104.Decided 7/25/2019
Petition for Leave to Appeal Denied, 2019 Ill. Lexis 1111, 11/26/2019
https://courts.illinois.gov/Opinions/AppellateCourt/2019/1stDistrict/1161104.pdf