People v. Holmes

Defendant was arrested when a Chicago police officer observed a revolver in defendant’s waistband. Police discovered that defendant lacked a Firearm Owner’s Identification (FOID) card. Defendant was charged: Counts I and III alleged that defendant carried a loaded, uncased, immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A)), and counts II and IV alleged that he did so without a FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C)). After defendant’s arrest, the Illinois Supreme Court issued its 2013 “Aguilar” decision, holding that section 24-1.6(a)(1), (a)(3)(A), (d)(1) was facially unconstitutional because it violated the right to keep and bear arms, as guaranteed by the U.S. Constitution. The state entered a nolle prosequi on counts I and III. The circuit court granted defendant's to quash his arrest and suppress evidence with respect to counts II and IV on the ground that the officer only had probable cause to believe defendant was violating the statutory sections that were declared unconstitutional, so that probable cause was retroactively invalidated. The appellate court affirmed. The Illinois Supreme Court reversed. The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s arrest because probable cause was predicated on a statute that was subsequently declared unconstitutional on federal grounds. Federal case law holds that probable cause for arrest would not be retroactively invalidated by subsequent declaration of a statute’s unconstitutionality on federal grounds. To hold that the void ab initio doctrine requires retroactive invalidation of probable cause would be tantamount to a repeal of the statute, which would violate separation of powers. View "People v. Holmes" on Justia Law