by Anthony W. Accurso

The Supreme Court of Illinois reversed a defendant’s conviction for firearm possession because the State failed to present sufficient evidence to prove that he constructively possessed it.

In June 2015, a police officer pulled over a van being driven by Charles Wise. He admitted to speeding, but the officer called for backup to conduct a search after smelling burnt cannabis.

Near where a passenger (not Wise) was sitting in the third row of the vehicle, the officer found a pistol in a cupholder, covered by a glove. The officer also found a large amount of prescription pain pills. Wise was charged with unlawful possession of oxycodone and possession of a firearm by a felon under section 24-1.1(a) of the IL Criminal Code. 720 ILCS 5/24-1.1(a).

Wise proceeded to trial, stipulating that he had a prior felony conviction in Iowa but claimed he had a valid prescription for the pills and was not aware the gun was in the vehicle. He was found guilty of the speeding and firearm offense but was acquitted on the drug offense. He received two years’ imprisonment and one year of supervision. He appealed his conviction.

The appellate court overturned the conviction on the ground that the State failed to prove the gun was “on or about his person,” as it was too far for Wise to be able to reach it while driving. The State then appealed, and the Illinois Supreme Court agreed to hear the case.

Section 24-1.1(a) states: “It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.”

Wise stipulated to having a felony conviction in Iowa, and it was clear the firearm was found in a van, not “on his land or in his own abode or fixed place of business.” As such, the determinative issue was whether the State proved he had it “on or about his person.”

Testimony of the witnesses never placed the gun anywhere in the vehicle except the third-seat cupholder, so it could not have been said to have been “on” Wise’s person. However, case law allows for “constructive” possession arising from the phrase “about his person.” People v. Wright, 990 N.E.2d 329 (Ill. 2013) (“When … the defendant is not found to have had actually possessed the gun, the State must prove he constructively possessed the gun.”).

“[C]onstructive possession of a firearm may be shown where the person has knowledge of the presence of the weapon and exercises immediate and exclusive control over the area where the firearm is found.” People v. Brown, 164 N.E.3d 1187 (Ill. 2020). Comparing Section 24-1.1(a) to the statute prohibiting possession of a firearm during a commission of a felony, the Court noted that the mere presence of a weapon nearby is insufficient to constitute constructive possession. The weapon must be close enough for “immediate access” for constructive possession. People v. Condon, 592 N.E.2d 951 (Ill. 1992).

Instructively, the Illinois Supreme Court has explained that “when the statute prohibits the concealing of a weapon ‘on or about the person’ the weapon must be actually concealed on the person, or in such close proximity that it can be readily used as though on the person.” People v. Liss, 94 N.E.2d 320 (Ill. 1950).

Reviewing the evidence in a light most favorable to the State, the Court summarized the following facts found during the bench trial: (1) at all times when the vehicle was being driven through Illinois, Wise was driving the vehicle and was thus at least five to ten feet from the gun; (2) the vehicle belonged to Wise’s brother, who let him borrow it; (3) the firearm belonged to a friend of Wise’s brother, who testified to “forgetting” he left it in the van; (4) Wise’s fingerprints were not found on the firearm by the crime lab; and (5) the officer never saw Wise physically possess or discard the gun.

The Court compared the present case to People v. Clodfelder, 527 N.E.2d 632 (Ill. 1988) (holding that where “[d]efendant admitted ownership of the vehicle and the rifle and knowledge of where the rifle had been placed in the vehicle,” sufficient evidence “support[ed] a determination he constructively possessed the gun ‘about his person’”); People v. Rangel, 516 N.E.2d 936 (Ill. Ct. App. 1987) (“[d]efendant’s ownership of the car, his presence therein, and partial visibility of the weapon from the outside” supported conviction under 24-1.1); and People v. Gonzalez, 600 N.E.2d 1189 (Ill. Ct. App. 1992) (“affirm[ing] defendant’s conviction ... after officers saw him pull a revolver from his waistband and toss it to the ground”). The Court found these cases distinguishably different from Wise’s circumstances.

The Court found Wise’s circumstances more similar to Condon (conviction cannot stand “based only on constructive possession arising solely from the presence of weapons in the defendant’s home”), and People v. McIntyre, 962 N.E.2d 1108 (Ill. Ct. App. 2011) (“defendant’s status as owner-driver of the vehicle does not put him in possession of everything within the passenger area when there are passengers present who may, in fact, be the ones in possession of contraband”).

Applying the controlling case law to the facts of this case, the Court ruled that the State provided insufficient evidence to “prove beyond a reasonable doubt that defendant exercised immediate and exclusive control over the area where the firearm was found.” As such, the State failed to prove Wise was in constructive possession of the weapon in question. Thus, the Court ruled that Wise’s “conviction for unlawful possession of a weapon … on a theory of constructive possession cannot stand.”

Accordingly, the Court affirmed the appellate court’s judgement vacating Wise’s conviction. See: People v. Wise, 2021 Ill. LEXIS 419 (2021). 

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