When Bullets Don't Always Lead to Guns: Analysis of People v. Colyar

The First District's recent decision in People v. Colyar, No. 1-09-0323, slip op. (January 7, 2011) calls into question whether bullets in plain view in a vehicle give police officers probable cause to search the vehicle for a gun when the officers fail to ask the driver whether he possesses a FOID card. In Colyar, police officers approached a vehicle that was blocking the entrance to a hotel parking lot. Colyar, No. 1-09-0323, slip op. at 2. The vehicle's engine was running and the defendant was inside. Id. The officers approached the driver and told him that he was blocking the entrance to the parking lot. Id. at 3. As the officer walked up to the car, he observed a "'bullet sticking up' in a plastic bag on the center console. The cartridge appeared to be a rifle round, about three inches in length." Id. at 3. The driver and other passengers were ordered out of the car and handcuffed. Id. at 3-4. The officer searched the driver-defendant and found a live round of .454 caliber ammunition in his pants pocket. Id. at 4. Another officer then searched the car and recovered five additional rounds of .454 ammunition in the plastic bag in the center console. Id. After discovering ammunition on the defendant and in the car, the officer "believed there might be a gun in the Honda." Colyar, No. 1-09-0323, slip op. at 4. An officer then searched for a gun in the car, wherein he "recovered a .454 Redwing revolver from underneath the floor mat of the front passenger floorboard." Id.

Prior to trial, the defendant filed a motion to suppress the gun and the bullets. Id. at 1. The State argued that the search which led to the discovery of the gun was constitutional because it was incident to arrest. Id. However, the trial court disagreed, granting the motion to suppress because "without an inquiry by the officers to determine whether the defendant possessed a firearm owners identification (FOID) card, the possession of bullets per se was not a crime." Id. Therefore, because possession of the bullets alone is not a crime, there were no grounds for arrest, and therefore the fruits of a search incident to this unlawful arrest would not be admissible into evidence. See Colyar, No. 1-09-0323, slip op. at 5. The State appealed the trial court's ruling granting the defendant's motion to suppress. Id. at 6.

On appeal, the Appellate Court affirmed the trial court's ruling. Id. at 17. On appeal, the State argued that "'the seizure of the bullet in plain view was constitutional where the police believed it constituted evidence of criminal activity, and its presence in the passenger compartment reasonably justified the search for a gun in the vehicle." Id. at 6. The Appellate Court disagreed with this argument, holding that suppression of the gun was proper because "more was required to justify the search of the defendant's vehicle after the officers observed a bullet in plain-view, which precipitated the officers' action." Id. at 17. Among the steps that the officers could have taken, the Court noted, were asking whether the driver had a FOID card or whether he was a convicted felon. See id. In Illinois, "the absence of a valid FOID card makes possession of ammunition 'a Class A misdemeanor' and a convicted felon cannot 'be in possession of a valid FOID card.'" Therefore, if the officers would have determined either 1) that the driver did not have a FOID card or 2) that he was a convicted felon, the officers observance of the bullets would have provided them with with the probable cause that a crime had a occurred, which would give them grounds for an arrest, which would have allowed them to search the vehicle incident to that arrest. However, the officers never made such an inquiry of the defendant, so the arrest was improper and therefore the gun was held to be inadmissible. See id. at 17-18.

What is notable about Colyar is its reasoning, which may potentially apply in cases in which drugs--not guns--are found in the vehicle, which is a much more common occurrence. Last weekend, I was indulging a guilty pleasure by watching the television show "Cops." In the episode, a driver was pulled over for running a stop sign on his way to work. As the officer walked up to the driver's car, he shined his flashlight in the back seat, where he spotted a "blunt wrapper" on the floor. After speaking with the driver about the traffic infraction, he ordered the driver out of the car and searched the car, where he found the blunt wrapper on the floor but no marijuana. He then released the driver with a warning. In his interview after the traffic stop, the officer told the interviewer that the blunt wrapper provided him with probable cause to search the car for marijuana, since blunt cigars are often used in conjunction with marijuana. However, the officer never inquired into whether the driver had used the blunt from the wrapper in conjunction with an illegal narcotic.

The search of the driver's vehicle in the "cops" episode is analogous to the search of the driver's vehicle in Colyar. In both instances, officers searched the driver's car by observing something in plain view that was not per se illegal (the bullets and the blunt wrapper). In both cases, the item in plain view could be either legal or illegal, depending on the circumstances. The bullets can be legally possessed if one has a FOID card. The bullets can be illegally possessed if one does not have a FOID card. A blunt can be legally possessed so long as it is used alone and not in conjunction with an illegal narcotic. A blunt becomes illegal drug paraphernalia when it is used in conjunction with an illegal narcotic. If the reasoning of Colyar was used in analyzing the stop in "Cops," the officer should have asked the driver whether he used the blunt, whose wrapper was on the floor of the car, in conjunction with marijuana in order to obtain whether a crime had occurred, which would give him probable cause to search to the vehicle for the marijuana used in that crime. This makes sense because some people do, in fact, smoke blunt cigars by themselves. Therefore, evidence of the blunt cigar, which is not per se illegal, should not give rise to probable cause for a search of the vehicle without further inquiry of the driver that the blunt cigar is ,or was, being used in conjunction with an illegal substance, such as marijuana.