Court Denies Pretrial Release Under SAFE-T Act for Defendant Accused of Firearms Offense

The Fifth District held that the State presented clear and convincing evidence supporting detention after the defendant challenged the use of evidence potentially subject to suppression.

In People v. Forthenberry, 2024 IL App (5th) 231002, the Illinois Fifth District Appellate Court considered whether a defendant should remain detained under Illinois’ new pretrial release system after his original $200,000 bond had been set before the SAFE-T Act took effect.

The defendant was charged with aggravated discharge of a firearm, aggravated unlawful use of a weapon, unlawful possession of a weapon by a felon, and possession of a firearm while ineligible for a Firearm Owners Identification Card. He argued that the evidence supporting detention may have been obtained through an unconstitutional traffic stop and that he had fired his weapon only after someone at a nearby house party shot at him.

Quick Answer

The appellate court affirmed the detention order. The court held that the State presented sufficient evidence to meet the SAFE-T Act’s clear-and-convincing-evidence standard and that the trial court properly considered the potential for suppression when evaluating the weight of the State’s evidence. The appellate court did not decide whether the traffic stop was actually constitutional or whether the challenged evidence would ultimately be suppressed at trial.

The decision was issued January 5, 2024, in a published opinion. It is one of the early Illinois appellate decisions addressing how the SAFE-T Act’s pretrial detention procedures operate for defendants who were arrested and given a monetary bond before the new system took effect on September 18, 2023.

Background of the Case

On July 3, 2023, Rickey D. Forthenberry was charged with one count of aggravated discharge of a firearm, two counts of aggravated unlawful use of a weapon, two counts of unlawful possession of a weapon by a felon, and one count of possession of a firearm while not eligible for a Firearm Owners Identification Card.

The circuit court set Forthenberry’s bond at $200,000, with 10% to apply, and imposed no additional conditions of release. A grand jury returned an indictment on all six counts on July 21, 2023.

Charges Filed

Aggravated Discharge

One Class 1 felony count of aggravated discharge of a firearm.

Weapon Charges

Two counts of aggravated unlawful use of a weapon and two counts of unlawful possession of a weapon by a felon.

FOID Violation

One count of possession of a firearm while ineligible for a FOID card.

The aggravated discharge charge arose under 720 ILCS 5/24-1.2. The remaining charges included violations of Illinois firearm and weapons statutes.

The SAFE-T Act Took Effect While Forthenberry Remained in Custody

Illinois’ new pretrial release system took effect on September 18, 2023. Before that date, Forthenberry had been arrested and remained in custody after a monetary bond had been imposed.

On September 29, 2023, Forthenberry filed a motion seeking reconsideration of the conditions of his pretrial release. He asked the court to remove the monetary security requirement and review his conditions under the new statutory framework.

The State responded on October 10, 2023, by filing a verified petition seeking to deny pretrial release. The State alleged that Forthenberry was charged with a qualifying offense, that his release would present a real and present threat to the safety of people or the community, and that no condition or combination of conditions could adequately mitigate that threat.

The Court Had to Address Two Different Pretrial Issues

Because Forthenberry was originally detained under a monetary bond before the new law took effect, the court first had to determine whether the State could respond to his request to modify the existing release conditions by filing a petition seeking detention under the new statute.

The Fifth District held that the State was permitted to file the responsive petition under the circumstances presented in this case.

The State Presented Evidence About the Alleged Shooting

At the October 10 hearing, the State told the court that Danville police officers heard reports of gunfire near Kimball Street at approximately 1:30 a.m. on July 2, 2023. As officers approached the reported location, they saw a black SUV leaving the area and conducted a traffic stop.

Forthenberry was driving the SUV. Officers observed a loaded .40-caliber Smith & Wesson semiautomatic pistol inside the vehicle, with one round in the chamber. Officers also found a live .40-caliber round in Forthenberry’s pocket and observed multiple bullet holes in the vehicle.

According to the State’s proffer, Forthenberry and his passenger told officers that someone had fired at their vehicle. The State further represented that Forthenberry then drove home, obtained a firearm, returned to the area, and fired back after additional gunfire.

The State also relied on Forthenberry’s criminal history, which included prior convictions for driving while his license was suspended, domestic battery, resisting arrest, and obstruction of justice.

Evidence Considered at the Detention Hearing

Firearm

A loaded .40-caliber semiautomatic pistol was found inside the SUV.

Ammunition

A live .40-caliber round was found in Forthenberry’s pocket.

Vehicle Evidence

Officers observed multiple bullet holes in the vehicle.

Defense Raised Fourth Amendment and Self-Defense Arguments

Defense counsel argued that the traffic stop violated Forthenberry’s Fourth Amendment rights and that evidence obtained during the stop could ultimately be suppressed.

The defense also argued that Forthenberry did not initiate the shooting. Instead, counsel maintained that he fired only after people at a nearby house party shot at him and his vehicle. The defense relied on video evidence that, according to the appellate opinion, supported the claim that Forthenberry did not fire until his vehicle was fired upon.

Counsel further argued that Forthenberry’s actions did not establish that he was a danger to members of the public who were not using unlawful force against him. The defense proposed conditions such as staying away from the location of the shooting and possessing no firearms or dangerous weapons.

The Defense Was Not Asking the Court to Conduct a Full Suppression Hearing

At the detention hearing, defense counsel argued that the possibility of suppression should affect how much weight the court gave the State’s evidence. The trial judge agreed that the potential for suppression could be considered, but explained that the actual suppression question would need to be litigated later through the normal process.

How the SAFE-T Act Applies to Pretrial Detention

Under 725 ILCS 5/110-6.1, Illinois law permits a court to deny pretrial release only when the statutory requirements are satisfied.

For qualifying offenses, the State must prove by clear and convincing evidence that the proof is evident or the presumption great that the defendant committed a qualifying offense, that the defendant poses a real and present threat to the safety of a person or the community based on specific articulable facts, and that no condition or combination of conditions can mitigate that threat.

The statute specifically identifies aggravated discharge of a firearm under 720 ILCS 5/24-1.2 as one of the offenses for which detention may be sought when the statutory dangerousness requirements are met.

The court may consider the nature and circumstances of the offense, the defendant’s history and characteristics, the weight of the evidence, whether the offense involved a weapon, and other circumstances bearing on the defendant’s dangerousness.

Three Findings Required for Detention

Qualifying Offense

The State must establish by clear and convincing evidence that the defendant committed a qualifying offense.

Real and Present Threat

The State must establish a specific and articulable threat to the safety of a person or the community.

No Adequate Conditions

The State must show that less restrictive conditions cannot mitigate the identified threat.

Evidence That Might Be Suppressed Can Still Matter at a Detention Hearing

One of the more significant issues in People v. Forthenberry, 2024 IL App (5th) 231002 involved the relationship between a potential Fourth Amendment violation and the evidence considered during a pretrial detention hearing.

Under 725 ILCS 5/110-6.1(f)(6), a defendant generally may not move to suppress evidence or a confession during the detention hearing itself. However, the possibility that evidence resulted from an unlawful search or seizure is relevant to the weight of the State’s evidence.

The Fifth District concluded that the trial court followed this rule. The trial judge acknowledged that the suppression issue could be important but properly declined to make a final suppression ruling based only on the parties’ proffers at the detention hearing.

The appellate court therefore rejected Forthenberry’s argument that the trial court ignored the possibility that evidence from the traffic stop could eventually be suppressed.

Important Distinction

The appellate court did not decide that the traffic stop was constitutional. It decided only that the possibility of suppression did not prevent the trial court from considering the State’s evidence for purposes of the detention decision.

The Appellate Court Found the Evidence Sufficient for Detention

The Fifth District concluded that the State presented sufficient evidence to establish by clear and convincing evidence that the proof was evident or the presumption great that Forthenberry had committed the alleged qualifying offenses.

The appellate court pointed to several pieces of evidence: officers heard gunshots in the reported area, observed Forthenberry’s SUV leaving that area, found a loaded firearm in the vehicle, found ammunition in Forthenberry’s pocket, and observed bullet holes in the vehicle.

The court also considered the information that Forthenberry and his passenger had provided to police concerning the shooting and the State’s evidence that Forthenberry returned to the area after retrieving a firearm.

The court emphasized that the issue was whether the statutory standard for pretrial detention had been met. The proceeding was not a determination of guilt beyond a reasonable doubt.

The Court Also Upheld the Finding That No Conditions Were Sufficient

The trial court determined that Forthenberry posed a real and present threat to the safety of people in the community and that no conditions of pretrial release could adequately mitigate that threat.

In reaching that decision, the trial court considered the seriousness and circumstances of the alleged offenses, the weight of the evidence, Forthenberry’s prior criminal history, his status as a convicted felon who was prohibited from possessing a firearm, and the allegation that he left the area, obtained a firearm, returned, and fired at people.

The Fifth District reviewed the factual findings under the manifest-weight-of-the-evidence standard and the ultimate detention decision for abuse of discretion. The court concluded that the detention decision was not against the manifest weight of the evidence and was not an abuse of discretion.

Appellate Result

10/10/23

Detention Order

Circuit court ordered Forthenberry detained.

Affirmed

Appellate Result

Fifth District upheld the detention order.

What People v. Forthenberry Means for Illinois Criminal Cases

People v. Forthenberry, 2024 IL App (5th) 231002 is important for understanding how Illinois courts handle pretrial detention after the elimination of traditional monetary bail. It also illustrates that a defendant can raise potential constitutional problems with the State’s evidence at a detention hearing, but the court does not conduct a full suppression hearing at that stage.

The case is also significant for defendants who had a monetary bond set before September 18, 2023. The Fifth District held that a defendant in that situation may ask the court to review the existing conditions of release, and the State may respond with a verified petition seeking detention when the statutory requirements are met.

Finally, the decision demonstrates the high stakes involved in a SAFE-T Act detention hearing. A court must determine whether the State has met the statutory burden concerning the charged offense, dangerousness, and the availability of conditions that could reasonably protect the community.

Talk to a Champaign, IL Criminal Defense Lawyer Today

The Champaign, IL criminal defense attorneys at Patel Law, P.C. represent defendants facing serious criminal charges, including weapons violations and cases involving pretrial detention. If you or a family member is facing criminal charges, call our office at 217-384-1111 to schedule a consultation and discuss your defense options.