People v. Bartimo

ILLINOIS, THE THE Plaintiff-Appellee, PEOPLE OF STATE OF BARTIMO,Defendant-Appellant. ANTHONY W.

Fourth District No. 4 - 03-0351

Opinion January filed Jennings, Bloomington, appellant. M. of Harold (Norbert Goetten, J. Robert Stroh, Attorney, Eureka of Michael L. State’s Appellate Mannchen, Attorneys all of Biderman, E. State’s and David J. counsel), People. Office, for the Prosecutor’s of opinion of the court: delivered the JUSTICE TURNER Bartimo, defendant, W. charged Anthony March the State In substance, use of a unlawful possession of a controlled with unlawful July In defendant of cannabis. weapon, possession and unlawful January In the trial court denied. suppress, filed motion to which a of use guilty trial found defendant unlawful court denied possession of cannabis. court and unlawful weapon proba- him to months’ posttrial motion and sentenced tion on each offense. (1) in denying the trial court erred appeal,

On (2) convicted of unlawful wrongfully he was suppress, motion (3) he assistance of counsel. weapon, use received ineffective affirm. We

I. BACKGROUND by information with charged In March the State (720 570/402(c) (1) of a ILCS possession unlawful controlled substance (West 2002)), grams he less than 15 alleging knowingly possessed (720 (2) cocaine; weapon unlawful use of a ILCS containing substance (West 1(a)(4) 2002)), he in a vehicle alleging knowingly possessed 5/24 — (720 (3) handgun; possession a 9-millimeter unlawful cannabis (West 550/4(c) 2002)), alleging knowingly possessed he more ILCS containing than can- grams grams than 10 but less a substance nabis. evidence, alleg- July suppress

In filed a motion to expired plate license ing illegally by seized an officer for an sticker. In plates by temporary when the were valid as evidenced unlawful-possession-of-a- August the State dismissed substance-containing-cocaine charge. September suppress. motion hearing conducted a on defendant’s court March at about driving testified he was his car on expired on November p.m. plates He testified his license days. them for 120 He received a “yellow but the ‘T’ sticker” extended being they plates days prior stopped,” new set of license a “few pulled him over. The were in the of the car when officer backseat motion, which the finding State for directed on defendant’s moved trial court denied. Trent, County sheriff Shawn deputy

The State called Woodford he on and ran who he a black Audi March testified observed him A dispatcher on the advised registration plate vehicle. registration in expired vehicle, November 2001. Prior stopping Deputy Trent observed a November sticker on the back plate. then stopped investigate license He the vehicle to the status of the plates. After his shining spotlight vehicle, on defendant’s he noticed a temporary registration sticker. At time stop, he long was unaware of how a “T” sticker was valid. The court Deputy found Trent “good-faith had a to stop basis” the vehicle because and expired plates denied defendant’s motion. In January defendant’s bench trial Deputy commenced. Trent testified the expired plate stop license and his of defendant’s Upon vehicle, vehicle. approaching the Trent noticed a “hard-cased shotgun protruding rifle case from the trunk” and an unzipped soft-sided shotgun or rifle case on the floorboard of the backseat. Trent then asked for defendant identification he presented and a traf- fic in citation lieu of his license. Trent returned to his car squad and checked defendant’s license. car,

Upon returning to defendant’s Trent noticed defendant with his hand passenger seat,” “behind the which he later removed. Trent then if any weapons asked defendant he had in the vehicle. appeared Trent stated defendant “nervous” and advised him that he had in a rifle the trunk. if When asked he had other in firearms his vehicle, defendant responded “No.” When asked Deputy Trent for vehicle, consent search the “did not again if respond.” Trent any asked he had in the weapons nervous, Appearing vehicle. reached toward “the center passenger console seat like was going grab object.” area he an again Trent him asked about other and weapons, defendant stated “he a pistol laundry had in the on passenger basket seat next to him.” Trent then ordered him “get defendant out the car to away pistol” from the safety. began for officer Trent searching defendant, who “reached down his towards waistband consistent with producing a A weapon,” and Trent handcuffed him. frisk of defendant for weapons up dugout,” pipe,” turned a “wooden a “one-hitter and a in “[Blaggie pants pocket. cannabis” Trent searched the car and found an in pistol nylon cannabis and unloaded 9-millimeter holster pouch and “an ammunition of the holster front with loaded magazine” laundry in another the rear Trent basket seat. also rifle protruding found a in a case from the car’s trunk area. handgun target he uses his 9-millimeter testified shooting, targets he had other similar items car when stopped. placed handgun way He stated he “all the to the basket,” [laundry] bottom the and it was and in a closed unloaded holster. He testified he could not accessed the from the have

1105 car, had his to his the officer returned driver’s seat. When plates. for his license looking seat passenger behind the hand He gun. cover the also completely did not stated the holster Defendant and in his car. marijuana person his owning admitted on guilty found defendant Following closing the trial court arguments, cannabis. In possession of weapon of of a and unlawful unlawful use trial, a al- filed motion for new February posttrial him use alia, prove guilty failed to unlawful leging, inter State as- ineffective weapon beyond of a reasonable doubt and received In the motion. March the trial court denied sistance counsel. Thereafter, probation to 24 on the court sentenced defendant months’ fines. appeal along each offense with various This followed.

II. ANALYSIS A. Motion To Suppress in his argues denying Defendant the trial court erred motion to disagree. We suppress. and Burden 1. Standard Review of Proof mixed reviewing suppress appeal, questions a motion to on Gherna, v. Ill. 2d presented. People and fact are 203 law (2003). A of witness cred 805 trial court’s assessment N.E.2d if only manifestly

ibility and factual determinations will be reversed 194, 200-01, Anthony, v. erroneous. (2001). However, the ultimate of whether determination See People is entitled to de novo review. suppressed

evidence is Crane, N.E.2d evidence, has the burden suppress

On motion to the defendant (725 ILCS proving the search and seizure were unlawful 5/114—12 2002)). (West “However, prima once makes a show the defendant facie seizure, the shifts to the State to ing illegal of an search and burden People Ortiz, produce justifying evidence the intrusion.” N.E.2d misapplied evidentiary Defendant the trial court disagree. support We testified in of motion burden. would counsel indicated no further evidence suppress. After defense The trial court presented, finding. be the State moved for a directed motion, its State forward with evidence denied the and the went claim justified in his intrusion. Defendant’s establish officer was support has incorrectly that the trial the burden court understood burden in the The court commented on defendant’s record. with the suppress context of motion to evidence consistent Further, defendant’s required burden of the movant in that instance. claim that his motion for presenta- directed verdict the close of his tion may of evidence been if have successful the court had understood the burden is it meritless because was the State moved for a finding. Thus, directed find we no error. Stop The Traffic

The fourth amendment to the United States Constitution guarantees right “[t]he be people persons, secure their houses, effects, papers, and against unreasonable searches and Const., seizures.” Similarly, U.S. amend. IV Illinois Constitution right houses, affords citizens “the persons, be secure their papers[,J and possessions against searches, other unreasonable [and] I, § seizures.” supreme Const. art. 6. Our court has interpreted the search and seizure clause of 6 in a section manner consistent with the Supreme United States Court’s fourth amendment jurisprudence. People Gonzalez, 224, 204 220, 260, v. Ill. 2d 789 N.E.2d (2003). 264

When police a officer a observes driver commit a traffic viola tion, justified briefly detaining the officer is investigate driver to Sorenson, People 425, 433, violation. v. 752 N.E.2d (2001). 1078, 1084 A temporary of an a during detention individual stop vehicle a person constitutes seizure of his within the fourth amendment, if stop even the is brief and for a purpose. limited Whren States, 806, 809-10, v. 89, 95, United 517 L. 2d U.S. 135 Ed. 116 S. Ct. (1996). 1769, stop 1772 “An subject automobile is thus to the imperative constitutional that it not be ‘unreasonable’ under the matter, As a general stop circumstances. the decision an automobile is police reasonable probable where the have to believe a cause Whren, 810, traffic violation has occurred.” 517 U.S. at L. 2d 145 Ed. 95, at 116 S. Ct. at 1772. analogous a stop Terry investigative

“Because traffic is more to a (see Ohio, stop Terry 1, 889, v. 392 U.S. L. 20 Ed. 2d 88 S. Ct. 1868 (1968)) arrest, stop than to a formal the reasonableness of a traffic analyzed Terry A principles. Terry analysis [Citation.] is under ‘(1) involves a dual inquiry: justi- “whether officer’saction was (2) inception,” reasonably fied at its and it “whether was related scope justified the circumstances which the interference ’ Gonzalez, 228, 266,] place.” first 2d at [789 204 Ill. at N.E.2d 19-20, Terry, at quoting 392 U.S. at 20 L. Ed. 2d 88 S. Ct. at People Bunch, 7, 13-14, Ill. 1879.” v. 207 2d 1029 judice, acknowledges Deputy In the case sub Trent probable stop. Deputy had cause to initiate the traffic Trent received report that the license on defendant’s car dispatcher’s plates were 413(f) Code, of the Illinois Vehicle to section expired. According 3— *** Il- an displayed which is upon a vehicle person operate shall “[n]o stickers after the registration plate, platest,] registration linois after the issued or registration for which period of the termination 413(f) 2002). (West Thus, initial date.” 625 ILCS expiration 5/3 — justified. car stop of defendant’s Arrest

3. Defendant’s length Terry analysis, of the prong Under the second it carried out are considered. manner in which was detention and the The Bunch, United States Ill. 2d at 796 N.E.2d at 1029. be investigative “an detention must Supreme Court has stated is longer necessary and no than effectuate temporary last L. 2d U.S. Ed. stop.” Royer, Florida purpose (1983) Upon initiat (plurality opinion). 103 S. Ct. stop, may briefly detain the driver ing police minor traffic officer and, under request validity his driver’s license and determine its Ortiz, circumstances, speedy conduct warrant check. certain license at Once a check of driver’s App. is suspicion is “if no farther completed, warrant information longer aroused, stop individual should the traffic must cease Ortiz, 317 N.E.2d at 1018. be detained.” citation and allow police warning officer should then issue a ticket or Koutsakis, way. the driver to continue on See case, stopped defendant’s car for Deputy Trent testified he this temporary registra- not notice the expired plates license and did tion sticker until he shined his on car. spotlight longer Trent’s reason for him then no existed stopping the unnecessary and unwarranted. We find further intrusion was to defendant’s car Deputy approach circumstances Trent’s warranted put the to defendant. resulting questions and forth 426, Ill. Bradley, App. In 3d 685 N.E.2d car, no license (1997), stopped the had an officer defendant’s which (LAF) unreadable sticker with an “license-applied-for and a plates the the car and determined expiration approached date.” officer Bradley, Ill. 3d App. rear valid. LAF sticker on the windshield was to at the defendant’s motion Upon granting at 427. the found once the officer determined suppress, the trial court the valid, stop purpose complete LAF of the was sticker was the reason to defendant nothing explain do more than officer “could at Bradley, App. had 3d at stopped.” he been On appeal, argued the State that after the officer had properly stopped the to check the validity sticker, the LAF could then approach defendant and to see request his driver’s Bradley, license. 292 Ill. 3d at App. 685 N.E.2d at 427. This court held that once the officer valid, determined LAF sticker was officer defendant, “could then approach explain why to him he had stopped, been produce ask defendant his driver’s license.” Bradley, Ill. App. 3d at 685 N.E.2d at 428. Adams, In People 225 Ill. App.

(1992), an officer stop initiated a traffic of the car for defendant’s not having any registration plates. visible The officer shined spotlight on the vehicle and noticed a valid license-applied-for slip in the rear Adams, window. App. 225 Ill. 3d at 587 N.E.2d at 593-94. The of- ficer went to the car explain defendant’s the reason for the stop, and later events led to the driving defendant’s under the influence (DUI) Adams, arrest. App. 587 N.E.2d at 594. appeal,

On argued that once the officer determined valid, the LAF form justification was existed to him detain further Adams, and arrest him for DUI. 225 Ill. 3d at 587 N.E.2d at 594. This court held that it

“naturally followsthat once it was determined that defendant had license-applied-for valid displayed, form ap- officer would proach defendant, explain stop, the reason for apologize, doing, advise defendant he was In free leave. so observa- may tions the officermade form the probable basis of to ar- cause totally rest the defendant for stop.” a reason unrelated to the Ad- ams, 587 N.E.2d at 595. case, Deputy temporary this Trent observed the sticker after he stopped the car. suspicion the officer’s was al layed However, and no further justified. intrusion was Deputy Trent away was required wondering not to drive and leave why stop had place. Instead, been initiated in the ap first Trent could proach defendant’s vehicle to further “T” inspect sticker, explain the reason for the stop, apologize, and advise defendant he free leave.

Moreover, the that Deputy length fact Trent did not know the validity the temporary consequence. sticker’s is of no Deputy Trent stopped plates having expired Upon defendant for on his car. further inspection stop, after the Trent noticed temporary sticker. His as validity prohibit incorrect belief to the sticker’s did not him from Thus, approaching suspicions then car. as Trent’s concerning answered, purpose stop fully had not been approach of defendant’s car to ask for a driver’s license was reason- able. ap- he officer’s actions after challenge the

Defendant does not Instead, engaged defendant in conversation. and proached car seeing upon intrusion had basis for further argues Trent defendant further intrusion As we have found renewal sticker. temporary and person of defendant’s valid, analyze the later search we need not vehicle. officer, initially approaching

Nonetheless, upon we note the unzipped trunk and an vehicle, protruding from the noticed a case for The officer asked on floorboard. gun case the backseat soft-sided traffic citation instead presented a identification and was defendant’s car, checked squad The officer to his license. returned of defendant’s noticed license, upon returning to defendant’s car and The officer passenger’s his hand behind the seat. defendant with if he had thought nervous and asked defendant appeared “no” but failed any weapons responded in the vehicle. Defendant the vehicle. When officer respond request to the officer’s search vehicle, if in the again weapons asked defendant had pistol laundry passenger’s basket on the seat admitted he had a Thus, discovery of leading weapon next to him. the intrusion to the observations, officer’s justified upon the officer’s was based officer’s legitimate questions upon to defendant based posed observations, and responses. and defendant’s actions

4. Hearsay Testimony admitting Deputy erred in Defendant next the trial court alleged hearsay testimony. During suppress, Trent’s the motion to was Deputy temporary counsel asked Trent whether sticker defense he unaware at the time of the good days. Trent stated was Secretary of somebody stop, but after the “talked to with arrest good for office, temporary [sticker] they State’s advised strike, days.” but the trial court over Defense counsel moved to objection. ruled the

“Hearsay prove is an out-of-court statement offered evidence asserted, generally unless the truth of the matter and is inadmissible Cloutier, 178 Ill. 2d exception.” People recognized it falls within a Trent’s argues Deputy The State stickers were presented temporary statement was not to establish hearsay, thus not constitute but instead days valid for 90 does agree with defendant that what the Trent’s state of mind. We shows However, is irrelevant. based Secretary of State’s office Trent told section, disagree prejudiced it preceding in the we upon our discussion into harmless error. and find its admission evidence only proper evidence. Moreover, presumed court is to consider Todd, record does not indicate the trial court testimony relied on this making its ultimate determination on the motion to suppress, and we testimony find Trent’s prejudice harmless without defendant.

5. License Renewal Sticker the trial failure court’s to determine the correct period of time for a valid temporary renewal sticker resulted in an abuse of in its on ruling discretion his motion suppress. to We disagree. length

The of time a license renewal is sticker valid is irrelevant question to the of whether Trent could approach defendant stopping after him for expired an license plate discovering and later the If renewal sticker. Trent had known the renewal sticker was valid days, 120 he could up car, still have walked to explained defendant’s error, and allowed him to be on his way. Defendant’s due process

concerns are therefore unfounded.

B. Unlawful of a Weapon Use the Sufficiency Evidence of Defendant argues the evidence was insufficient to convict him of unlawful of weapon. disagree. use a We

When a reviewing challenge to the of sufficiency the evidence, case, whether, in a inquiry criminal the relevant is when viewing light in prosecution, evidence most favorable any of rational trier fact could have found the essential elements of beyond the crime a People Pollock, reasonable doubt. v. 202 189, Ill. 2d (2002). 669, 780 N.E.2d 685 of responsibility It is the trier of credibility fact to weight determine of and the given witnesses their testimony, evidence, resolve conflicts and to draw Ortiz, reasonable inferences from that v. People evidence. (2001). A court of not review will overturn the of proof verdict the fact finder “unless the is so improb able or unsatisfactory that there exists a reasonable doubt guilt.” People Maggette, v. Ill. 2d 339, 349 person

“A commits weapons the offense unlawful use of when he knowingly: (4) possesses Carries or on vehicle or concealed or about *** revolver, person any pistol, stun or other taser or (a)(4)

firearm, not except apply that this subsection does to or

Ill. following meet one of the weapons transportation affect conditions: state; (i) ]functioning or non[ in a are broken down (ii) (iii) accessible; immediately are not case, carrying firearm in a

are unloaded and enclosed by person has box, box, who shipping or other container Owner’s Identification currently valid Firearm been issued a (West2002). 1(a)(4) 720 ILCS CardU” 5/24— falls proving within has the burden 1(a)(4) of the by preponderance set forth in section exceptions 24— Martinez, App. People evidence. weapon proximity to the “Accessibility refers In weapon. to reach capability and the ‘easy if it is within words, ‘immediately accessible’ weapon is

other Shields, reach’ of defendant.” (2003), Martinez, citing N.E.2d N.E.2d at 947. pistol case, Deputy Trent testified he found the holstered this He laundry defendant’s car. stated the basket in the backseat of occupant a large a car” and front seat defendant’s vehicle was “not in backseat if he reached back. “probably could touch that basket” the pistol laundry Trent at the bottom of the basket located the the targets. placed gun testified he paper under clothes and Defendant basket,” “[t]here the believed way “all the to bottom of the gun from the driver’s seat.” way [he] could have accessed the was no easily grabbed The trial court determined that defendant could have Thus, gain weapon. the the pulled the or it to him to access to basket weapon immediately accessible. court found the was (1978), Smith, 95, 99, In a People v. supreme jury weapons. use of The convicted the of unlawful conviction, compart- gun glove in a locked finding court affirmed his a though immediately ment accessible to driver even was glove key could not access the defendant claimed he had no Smith, compartment driving. N.E.2d while Bolling, 181 Ill. 474. (1989), unlawful use appellate affirmed the defendant’s court easily retrieved conviction, finding the driver could have weapons

of in the seat of bag athletic located rear handgun zippered from his car. allow the in case sufficient to

We find evidence this was to defendant. immediately to accessible pistol trial court find the was fact, responsibility to draw court, The as the finder of has the evidence, viewing and in the evidence reasonable inferences from the State, in light most favorable we hold the trial court could weapon have found the immediately was beyond accessible a reason- able doubt.

We need not address merits of our colleague’s dissent because did argue not his gun case, enclosed in was but he instead argued gun’s placement in a holster at the bottom of a laundry basket filled with clothes it rendered inaccessible. trial court rejected argument, this presented the State sufficient evidence to support finding beyond the court’s a reasonable doubt. Statutory Interpretation

Defendant the trial court misinterpreted the unlawful use weapons of statute and or exceptions, its “case” “other container” requiring reversal of disagree. his conviction. We

First, regarding defendant sets forth a hypothetical enclosing a handgun a Tupperware in in passenger container seat versus the same in a holster in a However, cardboard box in the backseat. we analyze need not hypothetical defendant’s because the trial court had ample evidence before it conclude the gun, holstered with parts of gun exposed, immediately accessible and not enclosed case.

Second, appears to ask this court insert the word (4)(iii) (a) “locked” into section 24—1 of the Criminal Code of (Criminal Code) (720 l(a)(4)(iii) (West 2002)) ILCS promote 5/24 — highway safety. proper maintains a construction statute would be require guns to unloaded and enclosed a locked case, box, firearm carrying box, or shipping other locked container. However, argument unavailing is and irrelevant to his on appeal considering case weapon was not enclosed a locked case or container.

Moreover, courts “cannot read into words a statute that are not Chicago there.” Tribune City Co. Board Education Chicago, “ Further, separation powers, may [u]nder doctrine of courts not rewrite[,] legislate, If legislation. extend the statute as enacted operate seems to unjustly inappropriately, certain cases or ap ” peal must be Assembly, to General to the not court.’ Michigan Cook, 493, Avenue National Bank v. County 191 Ill. 2d 522, 528, (2000), 732 People Garner, N.E.2d 544 quoting v. 147 Ill. 2d (1992). 467, 475-76, 470, 590 N.E.2d 474 Defendant offers no author ity support request to his for us to add words to the unlawful use weapons alleged Thus, statute to its avoid “absurd” construction. we to have basis vacate defendant’s conviction. of Counsel

C. Assistance counsel. ineffective assistance argues received Defendant also disagree. We under of counsel are evaluated of ineffective assistance

Claims Washington, 466 U.S. in Strickland v. test set forth two-pronged 674, (1984), requires which show 2052 668, 80 L. Ed. 2d 104 S. Ct. prejudice. deficient and resultant was ing performance that counsel’s show his at defendant must performance, To deficient establish of reasonable objective an standard torney’s performance fell below Strickland, 940, citing 163, at Cloutier, 178 Ill. 2d at 687 N.E.2d ness. 693, Prejudice is 687-88, Ed. 104 Ct. at 2064. 80 L. S. U.S. at that, but for probability there is a reasonable established when errors, proceeding the result of the would unprofessional counsel’s 940, 163, cit Cloutier, 178 Ill. 2d at 687 N.E.2d have been different. 698, S. at 2068. Strickland, 694, U.S. at 80 L. Ed. 2d at 104 Ct. ing standard, and satisfy prongs both of the Strickland A defendant must prong finding of ineffective as satisfy precludes the failure to either Patterson, People v. sistance of counsel.

616, 626 the 120- argues trial counsel failed to establish sticker, court and day duration of the “T” which allowed trial days. However, as noted to assume its duration was prosecutor earlier, change “T” the duration of a valid sticker did not surrounding stop. circumstances failing trial was ineffective

Defendant also counsel discovery new object testimony regarding of defendant’s stop and the trial court’s later plates following license his car of counsel’s testimony. Generally, “[a] review reference such the exercise of involving does not extend to those areas competency Sutton, 229 Ill. discretion, People v. judgment, or trial tactics.” (1992). Further, is not “defense counsel ef- objections provide in order required losing to make motions Kelley, legal fective assistance.” N.E.2d throughout objections offered

The record indicates defense counsel objections ordinarily a matter of making is proceedings. Pecoraro, Ill. 2d strategy (People fell (1997)), representation do not counsel’s and we find defense Moreover, we range assistance. professional outside the of reasonable newly did focus on find no because the trial court not prejudice justified stop determined the plates found license but instead “T” discovery of the sticker. considering plates and later expired fails. assistance of counsel Therefore, defendant’s claim of ineffective

III. CONCLUSION stated, For the reasons we affirm judgment. the trial court’s Affirmed.

APPLETON, J., concurs. COOK, dissenting:

JUSTICE agree I that defendant’s vehicle was properly stopped because of the apparently expired registration plates. I agree also the officer was not required immediately away walk from the vehicle when he saw the “T” sticker. disagree, however,

I that defendant properly was convicted of the (720 1(a)(4) offense of (West unlawful use a weapon ILCS 5/24 — 2002)). I would reverse that conviction and vacate that sentence.

The evidence is clear that the handgun question unloaded, a snap-closed nylon holster, passenger-side located in the backseat. 1(a)(4) Section does not apply weapons that “are unloaded and 24— case, enclosed in carrying box, box, firearm shipping or other aby person container who has been issued currently valid Firearm l(a)(4)(iii) (West 2002). Owner’s Identification Card.” ILCS 5/24 — A “holster” is a “case.” Collegiate Merriam-Webster’s Dictionary 554 (10th 2000). ed. “Enclose” means (1): () (2) (common

a“1 to close in: SURROUND to fence off land) for individual b: use to hold in: CONFINE.” Merriam- (10th 2000). Collegiate Webster’s Dictionary 380 ed. “Enclosed” “confined,” means “held in” or such as cattle that are in pen. enclosed handgun clearly The here was held in or confined in snap-closed nylon holster, and accordingly there can be no viola- 1(a)(4). tion of section 24—

The State “By using that this parts holster which left gun exposed, the defendant to bring failed himself within the exemption,” citing a definition of “case” found in the Wildlife Code (520 (West 2002)): ILCS 5/1.2b—1 “ specifically [‘]Case[’] a container designed means for the

purpose housing gun or bow and arrow completely device which encloses such gun by being or bow and arrow zipped, device buckled, snapped, tied[,] or otherwise fastened portion with added.) gun or bow and exposed.” (Emphasis arrow device legislature The chose to employ an unusual definition “enclosed however, case” in legislature, the Wildlife Code. The did not choose employ definition the Criminal Code.

The Criminal Code is broader than the Wildlife Criminal Code. The cases, an provides it exemption an for just provide Code does not boxes, and boxes, shipping cases, carrying firearm exemption for Code, “no if the words from Wildlife Even container[s].” “other *** word “case” apply held to exposed,” were portion them to justification applying 1(a)(4), there is no in section 24— “container.” the word to the word words, however, applied be should not even to in sec- not contained in referred simply

“case.” The words are 1(a)(4). majority points As the out: tion 24— “[Cjourts that are not there.’ ‘cannot read into a statute words City Chicago, Chicago Education Tribune Co. v. Board of of of (2002). Further, 60, 674, 67, 773 N.E.2d 680 332 Ill. ‘ may not separation powers, courts the doctrine of “[u]nder rewrite[,] legislation. If the statute as enacted legislate, or extend unjustly or operate inappropriately, in certain cases seems to ’ Assembly,and not to the court.” be to the General appeal must 493, Cook, County v. 191 Ill. 2d Michigan AvenueNational Bank Garner, 528, (2000), 522, quoting Peoplev. 732 N.E.2d 544 (1992).” 475-76, 470, 467, 590 N.E.2d 1112. clearly be defined. The of a criminal statute must proscriptions provide person ordinary intelligence The reason- statute must lawful and unlawful conduct opportunity distinguish able between Maness, 191 Ill. 2d may accordingly. People so that he or she act (2000). 478, 483-84, 545, may required one be No meaning of life, speculate penal as to the peril liberty, property “ com- informed as to what State statutes. ‘All are entitled be ” Morales, City Chicago v. 177 Ill. 2d mands or forbids.’ (1997), 527 U.S. 144 L. Ed. 2d S. aff’d, (1999), Jersey, 306 U.S. quoting Ct. 1849 Lanzetta New provide “[T]he statute must L. Ed. 59 S. Ct. and fact for enforcement officers sufficiently definite standards law merely private on their application depend finders that its does not Hickman, conceptions.” People v. 1(a)(4) make It is irrelevant that section would 24— exposed” gun no of the were portion

better sense if the words “with read into it. if concede there was violation here

Apparently the State would handgun. large enough completely had cover holster been equally have been handgun What sense does that make? The would State would larger. Perhaps if the holster had been accessible if contained in handgun concede there was no violation were handgun would not bag top folded shut. Such a paper brown with probably that the portion exposed, have but the State would insist bag buckled, “zipped, snapped, tied[,] be or otherwise fastened.” A paper clip? justification There is no reading 1(a), the words of section 24— *** container,”

“enclosed a case or other to include require- ment portion exposed. that no be use unlawful of a weapon conviction should be reversed. HARI, re OF MARRIAGE LISA ANN SHERFEY Petitioner-Appellant, and HARI, Respondent-Appellee.

DAVIDALAN Fourth District No. 4 - 03-0382 February 3,

Opinion filed

Case Details

Case Name: People v. Bartimo

Court Name: Appellate Court of Illinois

Date Published: Jan 15, 2004

Citation: 803 N.E.2d 596

Docket Number: 4-03-0351

Court Abbreviation: Ill. App. Ct.