~+ IN THE SUPREME COURT OF THE UNITED STATES EDUARDO G4MEZ,Petitioner, -vs- PEOPLE 4F THE STATE OF ILLINOIS, Respondent. On Petition For Writ Of Certiorari To The Appellate Court 4f Illinois JAMES E. CHADD State Appellate Defender PATRICIA MYSZA Deputy Defender BRIAN E. KOCH Supervisor Counsel of Record Office of the State Appellate Defender First Judicial District 203 N. LaSalle St., 24th Floor Chicago, IL 60601 (312) 814-5472 1stDistrictGosad.state.il.us COUNSEL FOR PETITIONER Of Counsel: Michael Gomez Assistant Appellate Defender ~ ~, . ~ ,, ►: Does suspected possession of a firearm, on its own, provide a police officer with reasonable suspicion of criminal activity to justify an investigatory seizure under the Fourth Amendment? TABLE OF CONTENTS Question Presented for Review ........................................... i Table of Authorities .................................................. iii Opinion Below ....................................................... 1 Statement of Jurisdiction .............................................. 1 Constitutional Provisions Involved ....................................... 2 Statement of the Case ................................................. 3 Reason for Granting the Petition ........................................ 7 This Court Should Grant Certiorari to Decide a Question of Significant National Importance With Which Federal and State Courts Are Struggling: When Does Suspected Mere Possession of a Firearm—a Lav~ful Act Guaranteed by the Second Amendment and Permitted to Some Extent by All States—Provide Reasonable Suspicion of Criminal Activity to Justify a Fourth Amendment Intrusion?....... 7 I. The changing nature of gun possession under the Fourth Amendment.8 II. Federal and state courts are divided over whether suspected possession of a firearm justifies a Fourth Amendment intrusion............. 11 III. The issue in this case is ofcritical national importance, affecting virtually every person in America, given that the Second Amendment guarantees the right to bear arms, and all 50 States permit, on some level, individuals to carry guns in public............................ 18 IV. This case is an excellent vehicle to decide this issue.............. 19 Conclusion ......................................................... 23 Appendix A: Decision of Appellate Court of Illinois affirming the Petitioner's conviction and sentence. People v. Gomez, 2018 IL App (lst) 150605, 105 N.E.3d 901. Appendix B: Appellate Court of Illinois order denying rehearing. Appendix C: Supreme Court of Illinois order denying petition for leave to appeal. People v: Gomez, 108 N.E.3d 868 (Ill. Sept. 26, 2018). 11 ~ ~ ~' Federal Cases: Page Delaware v. Prouse, 440 U.S. 648(1979) .................................. 15 District of Columbia v. Feller, 554 U.S. 570(2008) ........................ 7, 9 Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) ................................ 9 Florida v. Bostick, 501 U.S. 429 (1991)................................... 18 Florida v. J.L., 529 U.S. 266 (2000) .................................. 10, 14 Illinois u. Wardlow, 52$ U.S. 119 (2000)............................... 21, 22 Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) ................ 9 McDonald v. City of Chicago, 561 U.S. 742(2010) ......................... 7, 9 Nfoore v. Madigan, 702 F.3d 933(7th Cir. 2012) ......................... 9, 10 Peruta v. California, 137 S. Ct. 1995(mem.) (2017) ...................... 10, 16 Terry v. Ohio, 392 U.S. 1 (1968) ...................................... 8, 16 Thornton v. City of Columbus, No. 2:15-cv-1337, 2017 WL 2573252 (S.D. Ohio June 14, 2Q17) ............................................. 22 United States v. Black, 707 F.3d 531 (4th Cir. 2013)..................... 11, 12 United States v. Bonner, 363 F.3d 213(3d Cir. 2004) ....................... 21 United States v. Fonville, 127 F. Supp. 3d 790(E.D. Mich. 2015).............. 13 United States v. Gatlin, 613 F.3d 374(3d Cir. 2010)........................ 14 United States v. Hudson, No. 18-0017-WS, 2018 WL 3543058 (S.D. Ala. July 23, 2018) .............................................. 15 United States v. Kehoe, 893 F.3d 232 (4th Cir. 2018)........................ 13 United States v. Lewis, 672 F.3d 232(3d Cir. 2012)......................... 11 United States v. Lewis, 674 F.3d 1298 (11th Cir. 2012)...................... 14 iii United States v. 1Vfarzzarella, 614 F.3d 85 (3d Cir. 2010) ..................... 9 ~Inited States v. Parker, 240 F. Supp. 3d 318(M.D. Pa. 2017) ............. 12, 13 United States v. Polite, _ F.3d _,No. 18-1752, 2018 WL 6358491 (8th Cir.Dec6,2018)................................................. 15 United States U. Pope, _ F.3d _,No. 18-1264, 2018 WL 6442656 (8th Cir. Dec. 10, 2018) ............................................... 14 United States v. Robinson, 846 F.3d 694(4th Cir. 2017)................. passim United States v. Sokolow, 490 U.S. 1 (1989)................................ 8 United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000) ...................... 11 United States v. Woodrum, 202 F.3d 1 (lst Cir. 2000)....................... 21 Woollard u. Gallagher, 712 F.3d 865 (4th Cir. 2013)......................... 9 Wong Sun v. United States, 371 U.S. 471 (1963) ............................ 8 State Cases: People v. Aguilar, 2013 IL 112116........................................ 9 People v. Gomez, 2018 IL App (lst) 150605 ...... .................... 20, 21 State v. Williamson, 368 S.W.3d 468(Tenn. 2012)....................... 13, 14 Pinner v. State, 74 N.E.3d 226 (Ind. 2017)............................. 14, 15 Constitutional Provisions: U.S.Const.amendIV.................................................. 8 U.S.Const.amend XIV ................................................ 8 1V No. I~ SUPREME COURT OF THE UNITED STATES EDUARDO GOMEZ, Petitioner, -vs- PEOPLE OF THE STATE OF ILLINOIS, Respondent. On Petition For Writ Of Certiorari To The Appellate Court Of Illinois The petitioner, Eduardo Gomez,respectfully prays that a writ ofcertiorari issue to review the judgment below. ~' • ~ The decision of the Illinois Appellate Court(Appendix A)is reported at 2018 IL App (1st) 150605, 105 N.E.3d 901, and is published. A copy of order denying rehearing (Appendix B)is not reported. The order of the Illinois Supreme Court denying leave to appeal (Appendix C)is reported at 108 N.E.3d 868 (Ill. Sept. 26, 2018). JURISDICTION On April 3, 2018, the Appellate Court of Illinois issued its decision. A petition for rehearing was timely filed on Apri124, 2018, and denied on May 3, 2018. A petition for leave to appeal was timely filed on June 6, 2018, and the Illinois Supreme Court denied the petition on September 26, 2018. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(a). -1- Second Amendment to the United States Constitution A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Fourth Amendment to the United States Constitution The right ofthe people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -2- STATEMENT OF THE CASE Motion to Suppress The testimony at the hearing on Eduardo Gomez's motion to suppress established that on July 3, 2014, at about 10:45 p.m., Eduardo and his friends, Frankie Baez and Enriquez Salvador ("Junior") were sitting in a parked car in a residential area in Chicago, Illinois, waiting for Frankie's baby's mother to join them.(R. F.4-5) Junior was in the driver's seat, Eduardo was in the rear driver's side seat, and Frankie was in the rear passenger's side seat.(R. F.S, 11) Chicago Police Department Officer Anthony Amato testified that he and his two partners were driving around in an unmarked car that evening. (R. F.20) They had seen Junior's car driving around twice that night in a span of 30 to 40 minutes, so they decided to pull up next to it when they saw it parked in front of a residential building. (R. F.20, 22) Frankie testified that the officers came "out of nowhere."(R. F.5) Amato began questioning Junior, the driver, asking him what he was doing there and where he lived.(R. F.33) Junior initially said that he lived down the street, but when Amato asked him far the exact address, he said,"[N]o, you know what,I don't live down the street. I live on the other side of Pulaski."(R. F.24) During this brief conversation, Amato noticed Eduardo slouching down in his seat past the window to the point where he could only see Eduardo's head.(R. F.24) Amato found Eduardo's behavior to be "suspicious."(R. F.25) Amato said that, based on the conversation with the driver and Eduardo's slouching,the officers "exited [their] vehicle to, you know, speak with him more[.]"(R. F.25) Amato noticed that Eduardo was leaning toward the middle portion of the car -3- with his forearm over his waistband and his right hand underneath his shirt.(R. F.26) He again found Eduardo's behavior to be "suspicious," so the officers ordered the friends to show their hands.(R. F.27) Eduardo first showed his left hand and then his right, while continuing to hold his forearm over his waistband. (R. F.27) Although Amato did not see a gun or a bulge in Eduardo's pants, he believed Eduardo "had a weapon on him," specifically a gun.(R. F.28, 42) The officers