People v. Neal

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Neal, 2011 IL App (1st) 092814Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KENNETH NEAL, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-09-2814
Filed June 29, 2011
Held Defendant’s conviction for unlawful possession of a controlled substance
(Note: This syllabus was affirmed and the constitutionality of an ordinance prohibiting the
constitutes no part of solicitation of unlawful business, the violation of which was the basis for
the opinion of the court his arrest, was upheld over challenges of overbreadth and vagueness
but has been prepared where the court could properly conclude that the officers involved
by the Reporter of witnessed defendant violate the ordinance and thus had probable cause to
Decisions for the arrest him, especially when they saw defendant standing at an intersection
convenience of the in a ‘high gang and narcotics area” yelling “blows” to passers-by.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-2798; the
Review Hon. John P. Kirby, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Peter Sgro, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE MURPHY delivered the judgment of the court, with opinion.
Presiding Justice Quinn concurred in the judgment and opinion.
Justice Steele dissented, with opinion.
OPINION
¶1 Following a bench trial, defendant Kenneth Neal was convicted of possession of a
controlled substance (less than 15 grams of heroin) (720 ILCS 570/402(c) (West 2008)) and
sentenced to two years’ probation. On appeal, defendant contends that the police lacked
probable cause to arrest him for violating a municipal ordinance prohibiting the solicitation
of unlawful business. The evidence showed that he did nothing more than repeatedly yell the
word “blows,” and he contends that the heroin recovered in his postarrest search should
therefore have been suppressed.
¶2 Defendant was arrested by Chicago police and initially charged with soliciting unlawful
business in violation of a Chicago ordinance (Chicago Municipal Code §§ 10–8–515(a), (b)
(added Apr. 1, 1998)) (the Ordinance) and possession of a controlled substance. The arrest
report indicated that he was arrested “in a high gang and narcotics area” for yelling “blows”
in violation of the Ordinance and a custodial search at the police station found heroin.
Defendant was formally charged with possession with intent to deliver.
¶3 Defendant filed a motion to quash, contending that the police lacked probable cause to
arrest him for nothing more than allegedly shouting “blows” in an area alleged by police to
be a “high gang and narcotics area.” Therefore, the heroin found in his custodial search
should be suppressed as “fruit of the poisonous tree.”
¶4 At the motion hearing, Officer Jerome Malkowski of the Chicago police department
testified that he saw defendant standing at an intersection in Chicago repeatedly yelling
“blows” at passers-by. Officer Malkowski testified that, in his 15 years of police experience
with hundreds of narcotics arrests, “ ‘blows’ is a term used in the street sale of heroin.” He
suspected that defendant was trying to sell heroin. Officer Malkowski had not seen defendant
hand anyone anything, take anything from anyone, or converse with any of the passers-by.
Officer Malkowski did not testify that the area of defendant’s arrest was notable for gang
activity or narcotics sales. He arrested defendant for violating the Ordinance by soliciting
unlawful business. Defendant was brought to the police station, where a custodial search
found seven packets of heroin. On this evidence, the court denied the motion to quash,
-2-
finding that Officer Malkowski testified credibly that defendant had been soliciting unlawful
business on a street and thus had probable cause to arrest him.
¶5 Defendant filed a motion to reconsider, arguing that repeating “blows” to passers-by was
by itself insufficient to constitute probable cause. While defendant acknowledged that Officer
“Malkowski brought to the court’s attention [that] ‘blows’ can mean heroin,” he argued that
this at best constituted reasonable suspicion for an investigatory stop rather than probable
cause. Following arguments, the court denied the motion to reconsider. The court noted that
speech integral to unlawful conduct is not constitutionally protected and that, while
solicitation is a specific-intent offense, intent may be inferred from defendant’s actions and
the circumstances. The court expressly found that shouting “blows” on a street was a
violation of the Ordinance.
¶6 At trial, Officer Malkowski testified consistently with his hearing testimony. The parties
stipulated to the effect that the seven items found on defendant after arrest contained 1.5
grams of heroin. The court found defendant guilty of simple possession of a controlled
substance, rather than possession with intent to deliver as charged. Defendant contended in
his unsuccessful post-trial motion that his motion to quash was erroneously denied. He was
sentenced to two years’ probation, and this appeal followed.
¶7 On appeal, defendant contends that the police lacked probable cause to arrest him for the
ordinance violation of soliciting unlawful business where the evidence showed that he did
nothing more than repeatedly yell the word “blows.”
¶8 The Ordinance, section 10–8–515 of the Municipal Code of Chicago, provides:
“(a) No person may *** stand upon, use or occupy the public way to solicit any
unlawful business ***.
(b) As used in this section, ‘unlawful business’ means any exchange of goods or
services for money or anything of value, where the nature of the goods or services,
or the exchange thereof, is unlawful. Unlawful business includes, but is not limited
to, prostitution or the illegal sale of narcotics. For purposes of this section,
‘soliciting’ may be by words, gestures, symbols or any similar means.” Chicago
Municipal Code §§ 10–8–515(a), (b) (added Apr. 1, 1998).
Violation of the Ordinance is punishable by up to 200 hours of community service, a fine of
at least $500, and/or imprisonment for between 10 days and 6 months for a first offense.
Chicago Municipal Code § 10–8–515(c).
¶9 This court has upheld the Ordinance against constitutional challenges of overbreadth and
vagueness:
“According to defendants, the City should ‘wait until an actual violation of a real
criminal law occurs and then arrest the suspect.’ This argument is meritless. The
ordinance is designed to rid our city streets of drug dealers and prostitutes. If an
individual actually completed the illegal business which he solicited, there would be
no need to charge him under the ordinance. *** Under the ordinance, that moment
[when police may act] occurs when the purpose to engage in unlawful business is
combined with soliciting that offense by way of words, gestures, or symbols.” City
of Chicago v. Powell, 315 Ill. App. 3d 1136, 1146 (2000).
-3-
The term “solicit” in the Ordinance is a well-defined term, read in pari materia with its use
in the Criminal Code. Id. at 1147-48 (720 ILCS 5/2–20, 8–1 (West 1998)). Solicitation
requires specific intent, which may be inferred from surrounding circumstances and the
defendant’s acts. Id. at 1145.
¶ 10 Police may arrest a person without a warrant only where they have probable cause; that
is, where the facts known to police at the time of arrest would lead a reasonably cautious
person to believe that the person was committing or had committed an offense. People v.
Hopkins, 235 Ill. 2d 453, 472 (2009). Probable cause is not proof beyond a reasonable doubt
but a probability of criminal activity. Id. The focus is upon the practical, commonsense
considerations that animate the actions of reasonable and prudent people rather than legal
technicians. Id. “[I]n deciding whether probable cause exists, a law enforcement officer may
rely on training and experience to draw inferences and make deductions that might well elude
an untrained person.” People v. Jones, 215 Ill. 2d 261, 274 (2005).
¶ 11 A trial court’s ruling on a motion to quash or suppress presents mixed questions of law
and fact. People v. McDonough, 239 Ill. 2d 260, 265-66 (2010). The court’s findings of fact
will be upheld on review unless they are against the manifest weight of the evidence, because
the trial court is in a superior position to weigh the credibility of the witnesses, observe their
demeanor, and resolve conflicts in their testimony. Id. at 266. However, a reviewing court
may undertake its own assessment of the facts and may draw its own conclusions when
deciding on appropriate relief, so that we review de novo the ultimate question of whether
the evidence should be suppressed. McDonough, 239 Ill. 2d at 266.
¶ 12 Here, the question before the trial court, on the motion to quash and subsequently, was
whether there was probable cause to suspect that defendant was violating or had violated a
law under which he could be arrested. The Ordinance is such a law. 65 ILCS 5/1–2–1.1
(West 2008); 725 ILCS 5/102–15, 107–2(1)(c) (West 2008). The Ordinance prohibits the
solicitation of unlawful business on the public way in Chicago, expressly including the illegal
sale of narcotics as such a business. The evidence here was to the effect that defendant
solicited the sale of heroin, an illegal narcotic, on a public way in Chicago. On that evidence,
the court could properly conclude that officers witnessed defendant violate the Ordinance and
thus had probable cause to arrest him.
¶ 13 Defendant argues that the term “blows” does not necessarily refer to heroin, and the core
of his argument is his assertion that “while courts consider the training and experience of the
officer as part of the totality of circumstances, they need not implicitly accept all of the
officer’s suspicions as reasonable.” However, while the trial court was not, and we are not,
required to accept Officer Malkowski’s testimony, we see no reason not to do so. Officer
Malkowski’s belief that defendant was soliciting the sale of heroin was based on knowledge
from 15 years’ police service and hundreds of narcotics arrests that “blows” refers to the sale
of heroin. The touchstone here is probability rather than certainty beyond a reasonable doubt,
common sense rather than legal pedantry. “Thus, the existence of possible innocent
explanations for the individual circumstances or even for the totality of the circumstances
does not necessarily negate probable cause.” People v. Rodriguez-Chavez, 405 Ill. App. 3d
872, 876 (2010). In that light, we reject defendant’s assertion that, because the word “blows”
has meanings other than heroin, Officer Malkowski, the trial court, or this court should
-4-
presume that defendant was using one of those other meanings in yelling “blows” repeatedly
to passers-by on a Chicago street corner.
¶ 14 The cases cited by defendant regarding probable cause to arrest for offenses involving
possession of a controlled substance are irrelevant. There, the issue was whether officers had
sufficient information to suspect that a defendant possessed narcotics; that is, whether it
could be inferred from actions short of overt present possession of known narcotics that a
defendant possessed or had possessed narcotics. By contrast, the issue here was whether
police could believe that defendant solicited the sale of narcotics. That is, the issue is
whether he committed a complete violation of the Ordinance in the presence of police.
¶ 15 Defendant cites to People v. Lee, 214 Ill. 2d 476 (2005), where our supreme court
vacated convictions for possession of a controlled substance and possession with intent to
deliver where the defendant was arrested for violating a municipal ordinance prohibiting
loitering on or near a public way “in a manner and under circumstances manifesting the
purpose to engage in drug-related activity.” Joliet Municipal Code § 21–10.1(a) (1990).
However, Lee is distinguishable from the instant case. In Lee, police received a tip that three
men were selling drugs at a particular intersection and, upon reaching the intersection, saw
three men standing on the street speaking with the driver of a van, whereupon they arrested
the three men for violating the drug-loitering ordinance. Lee, 214 Ill. 2d at 478-79. However,
there was no evidence that the men were loitering: “For all the officers knew, the driver of
the van might have stopped and asked for directions, or to greet one or more acquaintances.
These facts lack any overt act that would constitute probable cause for a warrantless arrest
under the ordinance.” Id. at 486. Moreover, “ ‘standing in a public place with no apparent
purpose is not a crime. *** When you add nothing to nothing, you get nothing.’ ” Id.(quoting City of Chicago v. Youkhana, 277 Ill. App. 3d 101, 114 (1995)).
¶ 16 By contrast, the instant defendant was arrested for the overt act of yelling “blows” to
passers-by, not merely standing in a public place. We find that this action and the testimony
of an experienced police officer with hundreds of narcotics arrests support the finding of
probable cause. We recognize the well-written analysis by the dissent as well as the recent
decision entered by the sixth division of this court in People v. Grant, 2011 Il App (1st)
091107. We agree with the dissent in Grant.
¶ 17 Accordingly, the judgment of the circuit court is affirmed.
¶ 18 Affirmed.
¶ 19 JUSTICE STEELE, dissenting:
¶ 20 The majority opinion holds that a person may be arrested on the charge of soliciting
unlawful business based solely on a police officer’s understanding of a single word. In so
holding, the majority opinion implicitly adopts an unprecedented definition of solicitation
and significantly lowers the threshold for probable cause. Accordingly, I respectfully dissent.
¶ 21 A ruling on a motion to suppress evidence ordinarily presents mixed questions of fact and
law. People v. McDonough, 239 Ill. 2d 260, 266 (2010). On appeal, we will reverse the trial
court’s findings of fact only if they are against the manifest weight of the evidence. Id.However, we will consider de novo “the ultimate question of whether the evidence should
-5-
be suppressed.” Id. In this case Neal challenges none of the circuit court’s factual findings.
Thus, this case presents a question of law.
¶ 22 An arrest executed without a warrant is valid only if supported by probable cause. People
v. Hopkins, 235 Ill. 2d 453, 472 (2009). “Probable cause exists where the arresting officer
has knowledge of facts and circumstances that are sufficient to justify a reasonable person
to believe that the defendant has committed or is committing a crime.” People v. Jones, 215
Ill. 2d 261, 273-74 (2005). The existence of probable cause depends upon the totality of the
circumstances at the time of the arrest. People v. Wear, 229 Ill. 2d 545, 564 (2008) (citing
People v. Love, 199 Ill. 2d 269, 279 (2002)). The “totality of the circumstances” includes the
experience of the officer, the behavior and characteristics of a suspect, whether the location
of the stop is a “high crime” area, and an officer’s prior dealings with the individual or
knowledge of a criminal record. See, e.g., United States v. Jackson, 300 F.3d 740, 745-46
(7th Cir. 2002).
¶ 23 In this case, Officer Malkowski believed Neal was violating section 10–8–515 of the
Chicago Municipal Code. The ordinance provides in relevant part:
“(a) No person may: (i) stand upon, use or occupy the public way to solicit any
unlawful business; or (ii) interfere with or impede any pedestrian or anyone in a
vehicle on the public way, for the purpose of soliciting any unlawful business.
(b) As used in this section, ‘unlawful business’ means any exchange of goods or
services for money or anything of value, where the nature of the goods or services,
or the exchange thereof, is unlawful. Unlawful business includes, but is not limited
to, prostitution or the illegal sale of narcotics. For the purposes of this section,
‘soliciting’ may be by words, gestures, symbols or any similar means.” Chicago
Municipal Code § 0–8–515 (added Apr. 1, 1998).
Thus, the ordinance defines how solicitation may occur, but fails to define what solicitation
is.
¶ 24 The majority relies on City of Chicago v. Powell, 315 Ill. App. 3d 1136 (2000), to assert
that the ordinance is to be read in pari materia with the Criminal Code of 1961. Powell
addressed the definition of solicitation in disposing of a vagueness challenge to the
ordinance:
“Many Illinois statutes involve the offense of solicitation and have not been found
to be unconstitutionally vague. Defendants criticize the City for defining the term
‘soliciting’ in a different way than it is used in criminal law. The Criminal Code of
1961 defines ‘solicit’ as ‘to command, authorize, urge, incite, request, or advise
another to commit an offense.’ 720 ILCS 5/2–20 (West 1998). In contrast, the
ordinance applies to the person who solicits so that he can commit a crime. However,
the Criminal Code’s definition of the crime of solicitation indicates that the act of
soliciting is intentional behavior. See also 720 ILCS 5/8–1 (West 1998) (defining the
specific offense of solicitation as commanding, encouraging, or requesting another
to commit a particular offense with the intent that the offense be committed).
‘Solicit’ has also been defined as ‘[t]o appeal for something; to apply to for obtaining
something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain
-6-
by asking or pleading; to entreat, implore, or importune; to make petition to; to plead
for; to try to obtain; *** [t]he term implies personal petition and importunity
addressed to a particular individual to do some particular thing *** to command,
authorize, urge, incite, request, or advise another to commit a crime.’ Black’s Law
Dictionary 1392 (6th ed. 1990). Thus, the definition of ‘solicit’ is so well understood
that no further definition of the ordinance is necessary.” Powell, 315 Ill. App. 3d at
1147-48.
Thus, the Powell court actually agreed with the defendants that the solicitation targeted by
the ordinance differs from solicitation as defined by the Criminal Code of 1961, recognizing
“the ordinance applies to the person who solicits so that he can commit a crime,” rather than
the solicitation of another to commit a crime. Accordingly, the definition of solicitation in
Powell turns on the remaining common elements, i.e., personal petition and importunity
addressed to a particular individual to engage in unlawful business.
¶ 25 In its brief, the State expands the definition of solicitation, arguing that standing on a
street corner and yelling “blows” is “akin to a vender [sic] at a ballgame yelling the nouns
‘peanuts, peanuts’ or ‘beer, beer’.” This definition is nowhere to be found in the ordinance.
This definition is nowhere to be found in the Criminal Code of 1961. This definition is
nowhere to be found in Powell. Nevertheless, to find probable cause exists in this case, the
majority opinion implicitly adopts an expanded definition of solicitation, which has two
major flaws.
¶ 26 First, according to the definition outlined in Powell, solicitation requires the importuning
of “another.” Indeed, the “ ‘term implies personal petition and importunity addressed to a
particular individual to do some particular thing.’ “ (Emphases added.) Powell, 315 Ill. App.
3d at 1147-48 (quoting Black’s Law Dictionary 1392 (6th ed. 1990)). In this case, the
undisputed evidence established that Neal was yelling “blows” on a street corner, but he was
not conversing or interacting with any of the passers-by. The lack of “another” in this case
is particularly salient, as this court recognized in Powell that a reasonable person would not
necessarily know that “blows” is a slang term for a controlled substance. Powell, 315 Ill.
App. 3d at 1143. The patrons hearing a vendor at a sporting event can be expected to
understand what peanuts and beer are. In contrast, there is no evidence here that anyone other
than Officer Malkowski heard and understood what “blows” meant. There is also no
evidence in the record that Neal was soliciting Officer Malkowski or anyone else, for that
matter, to purchase illegal narcotics.
¶ 27 Second, patrons at a sporting event understand the vendor’s barking as soliciting business
precisely because they are attending a sporting event; the location provides the context of the
verbal act. In this case, as the majority opinion correctly notes, Officer Malkowski did not
testify that Neal was in a high-crime area or a location known for illegal drug sales. The
majority opinion notes the arrest report indicating that Neal was arrested “in a high gang and
narcotics area.” However, the arrest report was not admitted into evidence at the suppression
hearing and should not be considered by this court on appeal. See People v. Blankenship, 406
Ill. App. 3d 578, 590 (2010) (citing People v. Long, 208 Ill. App. 3d 627, 638 (1990)). The
majority opinion also notes that Neal’s motion to quash refers to the police allegation of a
“high gang and narcotics area,” but such is not a clear, unequivocal statement of concrete fact
-7-
that could be deemed a judicial admission by Neal. See, e.g., Jordan v. Knafel, 355 Ill. App.
3d 534, 544 (2005).1
¶ 28 In this case, based on the record properly before us, Officer Malkowski effected a
warrantless arrest of Neal based solely on his understanding of the slang word “blows.” To
be sure, “in deciding whether probable cause exists, a law enforcement officer may rely on
training and experience to draw inferences and make deductions that might well elude an
untrained person.” Jones, 215 Ill. 2d at 274. Nevertheless, probable cause requires more than
a hunch or reasonable suspicion of criminal activity. See, e.g., People v. Lampitok, 207 Ill.
2d 231, 255 (2003). When assessing probable cause, “[our] inquiry must focus on what was
done and known by the police, not on what was believed, what the facts objectively viewed
add up to, not what the officer on the scene believed they added up to.” People v. Moody, 94
Ill. 2d 1, 10 (1983). This court is to assess the totality of the circumstances, but the majority
opinion holds that only one circumstance needs to exist to bypass reasonable suspicion and
demonstrate probable cause.
¶ 29 Moreover, the risks of expanding the definition of solicitation and diminishing the
probable cause threshold are well known. Historically, there have been objections to
extending solicitation to minor crimes, based on the fear that false charges may readily be
brought, either out of misunderstanding or harassment. 2 Wayne R. LaFave, Substantive
Criminal Law § 1.1(b), at 193 (2d ed. 2003). The potential for false charges under the
ordinance increases dramatically as a result of this decision.
¶ 30 In sum, the majority opinion finds probable cause to arrest for solicitation under the
ordinance, based on an expanded definition of the term, without any evidence that Neal
solicited anyone, and absent any other circumstances suggesting criminal activity, merely
because Neal was saying the word “blows” in public. For all of the aforementioned reasons,
I respectfully dissent.
1
As the majority notes, the First District, Sixth Division, of this court has ruled that probable
cause did not exist under similar factual circumstances, even when there was evidence the arrest
occurred at a place known for narcotics sales. People v. Grant, 2011 Il App (1st) 091107.
-8-