## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Neal , 2011 IL App (1st) 092814

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. KENNET H NEAL , Def

endant- Appellant.

District & N o. First District, Third Division Docke t No. 1-09-2814

Filed J une 29, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for unlawful possession of a controlled substance

was aff irmed and the constitutionalit y of an ord i n ance prohibiting the solicitation of unlawful business, the violation of which was the basis for his arr est, was upheld over challeng es of overbr eadth and vagueness wher e the court could proper ly conclud e t hat the office rs involved witnessed defe ndant violate the ordinanc e and thus had probable cause to

arr est him, espec ially when they saw defe ndant standing at an intersec tion in a ‘hig h g angand nar cotics ar ea” y elling “ blows” to passer s-by

.

Dec ision Under
Review Appea l from the Circuit Court of Cook Co u n t y , No. 09-CR-2798; the Hon. J ohn P. Kirby , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell etier, Alan D. Goldberg
, and Peter Sgr o, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Br ian K. Hodes, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE MURPHY de livered the judgme nt of the cour t, with opinion. Presiding Justice Quinn concur red in the judg ment and opinion.
J ustice Steele dissente d, with opinion.

OP INION

¶ 1 Following a bench trial, defe ndant Kenne th Nea l was co n v i ct ed o f p o s s ession of a controlled substance (less than 15 g rams of heroin) (720 I L CS 570/402(c) (West 2008)) and sentenced to two y ear s’ probation. On appea l, defe ndant contends that the police lacke d probable cause to arr est him for violating a municipal ordinanc e prohibiting the solicitation of unlawful business. The evidenc e showed that he did nothing more than repe atedly y ell the word “blows,” an d h e co ntends that the heroin rec overe d in his postarre st sear ch should there fore have be en suppre ssed. ¶ 2 Def

endant was arr ested by Chicag o police and initially char g ed with soliciting unlawf ul business in violation of a Chicag o ordinanc e (Chicag o Municipal Code §§ 10–8–515(a)
, (b) (adde d Apr. 1, 1998)) (the Ordinanc e) and possession of a controlled substance. The arr est repor t indicated that he was arr ested “in a high g ang and narc otics are a” for yelling “blows” in violation of the Ordinanc e and a custodial sear ch at the police station found h er o i n

. Def endant wa s formally

char g ed with possession with intent to deliver. ¶ 3 Def

endant f iled a motion to quash, contendingthat the police lacke d probable cause to

arr est him f

or nothing more than alleg edly shouting “blows” in an are a alleg ed by police to be a “hig h g ang and narc otics are a.” There fore
, t h e h er o i n found in his custodial sear ch should be suppresse d as “f ruit of the poisonous tree .” ¶ 4 At the motion hear ing, Of fi ce r J erome Malkowski of the Chicag o police depa rtment testified that he saw defe ndant standing at an intersec tion in Chicag o repe atedly y elling “blows” at passer s-by

. Offic er Malkowski testified that, in his 15 y ear s of police experience with hundr eds of narc otics arr ests, “ ‘blows’ is a term used in the street sale of heroin.” He suspected that defe ndant was trying to sell heroin. Offic er Malkowski had not seen defe ndant hand anyone any

thing, take any

thing from anyone, or converse with any of the pa ssers-by

. Officer Malkowski did not testify that the are a of defe ndant’s arr est was notable for gan g activity or narc otics sales. He arr ested defe ndant for violating t h e Ordinanc e by soliciting unlawful business. De fendant was broug ht to the police station, wher e a custodial sear ch found seven packe ts of heroin

. On this evidenc e, the court denied the motion to quash,

-2-finding that Offic er Malkowski testified cre dibly that defe ndant had been soliciting unlawful

business on a stree t and thus had proba ble ca use to arr est him. ¶ 5 Def

endant filed a motion to rec onsider, arguing that repe ating “blows” to passer s-by was b y it s e lf in s u f

f ic ie nt to c o n s titute probable cause

. Whil e defe ndant acknow ledg ed that Offic e r “Malkowski broug ht to the court’s attention [t hat] ‘blows’ can mean heroin,” he argued that
t h i s at best constituted rea sonable suspicion for an investigatory stop rathe r than probable

cause

. Following arguments, the court denied the motion to rec onsider. The court noted that
speec h integ ral to unlawful conduct is not constitutionally prot ec t ed an d that, while solicitation is a specific -intent offe nse, intent may be inferr ed from defe ndant’s actions and the circ umstances. The court expressly found that shouting “blows” on a stree t wa s a violation of the Ordinanc e. ¶ 6 At trial, Offic er Malkowski testified consistently with his hear ing testimony

. The parties stipulated to the eff

ect that the seven items found on d ef en d ant afte r arr est contained 1.5
g rams of heroin. The court found defe ndant g uilty of simple possession of a controlled substance, rathe r than possession with intent to deliver as char g ed. Def endant contende d in his unsucce ssful post-trial motion that his motion to quash was err oneously denied. He was sentenc ed to two y ear s’ probation, and this appeal followe d. ¶ 7 On appea l, defe ndant contends that the police lacke d probable cause to arr est him for the ordinanc e viol ation of soliciting unlaw ful business wher e the e vidence showed that he did nothing more than re peate dly y ell the word “ blows.” ¶ 8 The Or dinance , section 10–8–515 of the Munic ipal Code of Chicag o, provides:

“(a ) No person may *** stand upon, use or occupy the public way to solicit any unlawful business ***. (b) As used in this section, ‘unlawf ul business’ means any exchang e of g oods or service s for money

or any thing of value, whe re the nature of t he goods or service s,

or the exchang e there of, is unla wful. Unlawf

ul business includes, but is not limited to, prostitution or the illega l sale of narc otics. For purposes o f t his section, ‘s o l iciting’ may be by words, g estures, sy mbols or any simil ar means.” Chi ca go Municipal Code §§ 10–8–515(a ), (b) (adde d Apr. 1, 1998). Violation of the Ordinanc e is punishable by up to 200 hours of community service
, a fine of
at least $500, and/o r imprisonment for betwee n 10 day s and 6 months for a first offe nse. Chicag o Municipal Code § 10–8–515(c ). ¶ 9 This court has upheld the Ordinanc e ag ainst constitutional challeng es of overbr eadth a nd
vagueness: “Ac cording to defe ndants, the City should ‘wa it until an actua l violation of a rea l

cr i m i nal law occur s and then arr est the suspect.’ This argument is meritless. Th e ordinanc e is desig ned to rid our city streets of drug d ea l er s and prostitutes. I f an individual actua lly completed the illega l business which he solicited, there would be

no need to char g e him under the ordinanc e. *** Unde r the ordina nce, that moment [ wh en police may act] occur s when the purpose to eng ag e in unlawful busi n es s i s combined with soliciting that off ense by way of words, g estures, or

sy mbols.” City of Chicago v. Powell , 315 I ll. App. 3d 1136, 1146 (2000).

-3-The term “solicit” in the Ordinanc e is a well-de fined term, rea d in pari materia with its use

in the Crimin al C o d e. Id

. at 1147-48 (720 I L CS 5/2–20, 8–1 (West 1998)). Solicitation require s specific intent, which may be inferr ed from surrounding circ umstances and the defe ndant’s ac ts. Id. at 1145. ¶ 10 Police may arr est a person without a war rant only wher e they have probable cause ; that is, wher e the fac ts known to police at the time o f ar re s t wo u l d lead a rea sonably cautious
person to believe that the person was committing or had committe d an o ff ense. People v. Hopkins
, 235 I ll. 2d 453, 472 (2009). Probable cause is not proof beyond a rea sonable doubt but a proba b i l i t y o f criminal activity

. Id. The focus is upon the prac tical, commonsense considerations that animate the actions of rea sonable and prudent peopl e ra t her than leg al technicia ns. Id. “[I ]n deciding whether probable cause exis ts, a law enfor ceme nt office r may rely on training and experience to draw infere nces and make deductions that might well elude
an untra ined per son.” People v . Jones , 215 I ll. 2d 261, 274 (2005). ¶ 11 A trial court’s ruling on a motion to quash or suppress prese nts mix ed questions of law and fac t. People v. McD onough
, 239 I ll. 2d 260, 265-66 (2010). The court’s finding s of fac t will be upheld on revie w unless they are ag ainst the manifest weig ht of the evidenc e, beca use the trial court is in a superior position to weig h the cre dibilit y of the witnesses, observe their demea nor, and resolve conflicts i n their testimony

. Id. at 266. Howeve r, a revie wing court may underta

ke its own assessment o f the fac ts and may draw its own conclusions when deciding on appropr iate re lief, so that we revie w de novo the ul timate question of whether the evidenc e should be suppre ssed. McD onough , 239 I ll. 2d at 266. ¶ 12 Her e, the que stion before the trial cour t, on the motion to quash and subseque ntly , was whether there was probable cause to suspe ct that defe ndant was violating or had violated a law under wh i ch he could be arr ested. The Ordinanc e is such a law. 65 I L CS 5/1–2–1.1 (West 2008); 725 I L CS 5/102–15, 107–2(1)( c) (W es t 2008). The Ordinanc e prohibits the solicitation of unlawful business on the public way in Ch ic a g o , e xpressly including the illega l sale of narc otics as such a business. The evidenc e here was to the eff ec t t h at d ef

endant solicited the sale of heroin, an illega l narc otic, on a public way in Chicag o. On that evidenc e, the court could proper ly conclude that o f f ic e r s w it n e s s e d d efe ndant violate the Ordinanc e and thus had probable cause to arre st him. ¶ 13 Def

endant argues that the term “blows” does not nece ssarily ref er to heroin, and the cor e of his argument is his asser tion that “while courts consider the training and experience of the office r as part of the totality of cir cu m s t an ce s , they need not implicitl y acc ept all of the office r’s suspicions as rea sonable.” Howeve r, while the trial court was not, and we are not, require d to acc ept Offic er Malkowski’s testimony
, we see no rea son no t t o d o so. Offic er Malkowski’s belief that defe ndant was soliciting the sale of heroin was based on knowledg e from 15 y ear s’ police service and hundreds of narc otics arr ests that “blows” ref ers to the sale of heroin. The touchstone here is probability rathe r than cer tainty beyond a rea sonable doubt,

common sense rathe r than l ega l pedantr y

. “Thus, the exis tence of possible innocent explanations for the individual circ umstances or even for the totality of the circ umstances does not nece ssarily neg ate probable cause .” People v. Rodriguez-Chave z , 405 I ll. App. 3d 872, 876 (2010). In that light, we reje ct defe ndant’s asser tion that, beca

use the word “blows” has meaning s other than heroin, Offic er Malko ws k i
, t h e trial court, or this court should

-4-presume that defe ndant was using one of those other meaning s in y elling “blows” repe atedly

to passers- by

on a Chicag o street c orner

. ¶ 14 The cases cited by defe ndant reg arding probable cause to arr est for offense s i n v o l v ing possession of a controlled substance are irrele vant. There
, the issue was whether office rs had

s u ff icient information to suspect that a defe ndant possessed narc otics; that is, whether i t could be inferr ed from actions short of overt present possession of known narc otics that a defe ndant possessed or had possessed narc otics. By contra st, the issue here was whether police could b el i ev e t hat defe ndant solicited the sale of narc otics. That is, the issue is whether he committed a c omplete violation of the Ordina nce in the pr esenc e of police

. ¶ 15 Def

endant cites to People v. L ee , 2 1 4 I l l

. 2d 476 (2005), wher e our supreme c ourt

vacated convictions for possessi o n of a controlled subst ance and possession with intent to deliver wher e the defe ndant was arr es ted for violating a municipal ordinanc e prohibiting loitering on or near a public way “in a manner an d u n d er circ umstances manifesting the
purpose to eng ag e in drug -re lated activity .” J o l i et Municipal Code § 21–10.1(a) (1990). Howeve r, Lee is distinguishable from the instant case

. In Lee
, police rec eived a tip that three

men wer e selling drug s at a particula r intersec tion and, upon rea ching the intersec tion, sa w three men standing on the street speaking with the driver of a van, wher eupon they arr ested the three men for violating the drug -loitering ordinanc e. Lee
, 214 I ll. 2d at 478-79. Howeve r, there was no e vidence that the men wer e loitering : “For all the offic ers kne w, the drive r of the van might have stopped and asked for direc tions, or to g ree t one or more acqua intances. These f acts lac k any

overt a ct that would constitute probable cause for a war rantless a rre st under the ordinanc e.” Id. at 486. Moreove r, “ ‘standing in a publi c pl ac e wi t h no appar ent purpose is not a crime. *** When y ou ad d n o t h i ng to nothing, y ou g et nothing.’ ” Id. (quoting City of Chi cago v. Youkhana , 277 I ll. App. 3d 101, 114 (1995)). ¶ 16 By contra st, the instant defe ndant was arr ested for the overt ac t o f yelling “blows” to
passer s-by
, not mere ly standing in a public place

. We find that this action and the testimony of an experience d police office r with hundreds of narc otics arr ests support the finding of probable cause . We rec og nize the well-written a naly sis by the dissent as we ll as the rec ent decision enter ed by t h e six th division of this court in People v. Grant
, 2011 I l App (1st) 091107. We ag ree with the dissent in Grant

. ¶ 17 Acc ording ly , the judg ment of the c ircuit court is af firmed. ¶ 18 Affir

med.

¶ 19 J USTI CE STEEL E, dissenting: ¶ 20 The majority opinion holds that a person may be arr est ed o n t h e ch ar ge of soliciting unlawful business based solely on a police office r’s understandi n g o f a single word. In so holding, the majority opi n i o n implicitl y adopts an unprece dented definition of sol icitation and signific antly lowers the threshold for probable cause

. Acc ording ly
, I respe ctfully dissent. ¶ 21 A ruling on a motion to suppress evidenc e ordinarily prese nts mix ed questions of fac t a nd law. People v. McD onough
, 239 I ll. 2d 260, 266 (2010). On appea l, we will reve rse the trial court’s finding s of fac t only if they are ag ain st the manifest weig ht of the evidenc e. Id. Howeve r, we will consider de novo “the ulti mate question of whe ther the e vidence should

-5-be suppressed.” Id. In this c ase Nea l c halleng es none of the circ uit c ourt’s fac tual finding s.

Thus, this case pr esents a que stion of law. ¶ 22 An arr est executed without a war rant is valid only if supported by probable cause

. People v. Hopkins
, 235 I ll. 2d 453, 472 (2009). “Probable cause ex is t s wher e the arr esting office r has knowledge of facts and circumstance s that are sufficie nt to justify a reasonable person to believe that the defe ndant has committed or is committing a crime.” People v. Jones
, 215 I ll. 2d 261, 273-74 (2005). The exis tence of probable cause depends upon the totality of the circ umstances at the t ime of t he arrest. People v. W ear , 229 I ll. 2d 545, 564 (2008) (citing People v. Love
, 199 I ll. 2d 269, 279 (2002))

. The “totality of the circ umstances” includes the experience of the office r, the behavior and char acte ristics of a suspect, whether the location of the s top is a “hig h crime” are a, and an office r’s prior dealing s with the individual or knowledg e of a criminal rec ord. S ee, e.g. , United St ates v. Jackson
, 3 0 0 F. 3d 740, 745-46 (7th Cir. 2002). ¶ 23 In this case , Officer M al k o ws k i believed Nea l was violating section 10–8–515 of the Chicag o Municipal Code. The or dinance provides in re levant par t: “(a ) No person may : (i) st and upon, use or occupy the public way

to solicit any unlawful business; or (ii) interfe re with or i m p ed e an y pedestria n or anyone in a vehicle on the public way , for the pur pose of soliciting any

unlawful business. (b) As used in this section, ‘unlawf ul business’ means any exchang e of g oods or service s for money or any thing of value, where the nature of the g oods or servic es,

or the exchang e there of, is unlawful. Unlawf ul business includes, but is not limited to, prostitution or the illega l sale of narc otics. For the purposes of this section, ‘soliciting’ may be by words, g estures, sy mbols or any simil ar m ea n s .” Chicag o Municipal Code § 0–8–515 (a dded Apr . 1, 1998). Thus, the ordinanc e define s how solicitation may occur , but fails to define what solicitation is. ¶ 24 The majority relies on City of Chicago v. Powell
, 315 I ll. App. 3d 1136 (2000), to assert that the ordinanc e is to be rea d in pari materia wi t h the Criminal Code of 1961. Powell addre ssed the definition o f solicitation in disposing of a vagueness challeng e to the ordinanc e: “Many I l l i n o i s statutes involve the offense of solicitation and have not been found
to be unconstitutionally vague. Def endants criticize the City for defining t h e term ‘soliciting’ in a differ ent way than it is used in criminal law. The Criminal Code of 1961 define s ‘solicit’ as ‘to command, authorize, u rge , incite, reque st, or advise another to commit an offe nse.’ 720 I L CS 5/2–20 (West 1998). In contr as t , t h e ordinanc e applies to the person who solicits so that he can commit a crime. Howeve r, the Criminal Code’s definition of the crime of solicitation indicates that the act of soliciting is intentional behavior

. See also 720 I L CS 5/8–1 (West 1998) (def ining the specific offe nse of solicitation as commanding , encour ag ing, or reque sting another
to commit a particula

r offe nse wi t h t h e intent that the offe nse be committed). ‘Solicit’ has also been define d as ‘[t] o appea l for something; to apply to for obtaining something; to ask ear

nestly ; to ask for the purpose of rec eiving ; to endea vor to obtain

-6-by asking or pleading ; to entre at, implore, or importune; to make petition to; to plead for; to try to obtain; *** [t ]he term i m p l i es p ersona l petition and importunity addre ssed to a particula

r individual to do some part icular thing *** to command, authoriz e, urge , incite, request, or advise another to commit a crime.’ Black’ s L aw Dictionary 1392 (6th ed. 1990). Thus, the definition of ‘solicit’ is so well understood that no further definition of the ordina nce is ne cessa

ry .” Powell
, 315 I ll. App. 3d at 1147-48. Thus, the Powell

court a ctually

agree d with the defe ndants that the solicitation targ eted by the ordinanc e differ s from solicitation as define d by the Criminal Code of 1961, rec og nizi ng “the ordinanc e applies to the person who solicits so that he can commit a crime,” rathe r than the solicitation of another to commit a crime. Acc ording ly
, the definiti on of solicitation in P owell turns on the rema ining common elements, i.e.
, persona l petition and imp o rt u n i t y addre ssed to a par

ticular individual to eng ag e in unlawf ul business. ¶ 25 In its brief, the State expands the definition of soli ci t at i o n , arguing that standing on a street corner and y elling “blows” is “akin to a vender [ sic ] at a ba llgame y elling the nouns ‘pea nuts, peanuts’ or ‘bee r, beer ’.” This definition is nowher e to be found in the ordinanc e. This definition is nowher e to be found in the Crim i n al C o d e o f 1961. This definition is nowher e to be found in Powell

. Neve rtheless, to find probable cause exis ts in this c ase, the majority opinion implicitl y adopts an expanded definition of solicitat ion, which has two major flaw s. ¶ 26 First, acc ording to the definition outlined in Powell
, solicitation require s the importuning of “another.” Indeed, the “ ‘te rm implies personal petition and im portunity addressed to a particular individual to do some particula r thing.’ “ (Emphase s added.) Powell
, 315 I ll. App. 3d at 1147-48 (quoting Bla ck’s L aw Dictionary 1 3 9 2 (6th ed. 1990)). In this case , the undisputed evidenc e established that Nea l was yelling “blows” on a street corne r, but he was not conver sing or

interac ting with any

of the pa ssers-by . The lack of “anothe r” in this case is particula

rly salient, as this court rec og nized in Powell that a rea sonable person would not

nece ssarily know that “blows” is a slang term for a controlled substance. Powell
, 3 1 5 I l l. App. 3d at 11 4 3

. T he patrons hear ing a vendor at a sporting event can be expected to understand what peanuts and beer are

. In contra st, there is no evidenc e here that anyone other than Of fi cer Malkowski hear d and understood what “blows” meant. There is also no evidenc e in t h e re co rd t hat Neal was soli citing Office r Malkowski or any one else, for that matter, to purc hase illeg al nar cotics. ¶ 27 Seco n d
, p a

tro ns at a sporting event understand the vendor’ s barking as soliciting business
prec isely beca

use they are attending a sporting event; the location provides the context of the verba l act. I n this case , as the majority opinion corr ectly notes, Offic er Malkowski did not t es t i fy t h at Nea l was in a high- crime are a or a location known for illega l drug sales. T h e majority opinion notes the arr est repor t indicating that Nea l was arr ested “in a high g ang and

narc otics are a.” Howeve r, the arr est repor t was not admitted into evidenc e at the suppression hear ing and should not be considere d by this court on appea l. See People v. Blankenship
, 406 I ll. App. 3d 578, 590 (2010) (citing People v. Long
, 208 I ll. App. 3d 627, 638 (1990))

. The majority opinion also notes that Nea l’s motion to quash refer s to the pol ice alleg ation of a “hig h g ang and narc otics are a,” but such is not a clea r, unequivoca l statement of concr ete fac t

-7-that could be deeme d a judicial admission by Nea l. See, e.g. , Jordan v. Knafel
, 355 I ll. App.

3d 534, 544 (2005). 1 ¶ 28 In this case , based on the rec ord proper ly befor e us, Officer M al k o ws k i ef fec ted a

war rantless arr est of Nea l based solely on his unde rstanding of the slang word “blows.” To be sure, “in deciding whether probable cause exis ts, a law enfor ceme nt of fice r may rely on training and experience to draw i n fe re nces and make deductions that might well elude an untrained person.” Jones
, 215 I ll. 2d at 274. Neve rtheless, probable cause require s more than

a hunch or rea sonable suspicion of criminal ac tivity

. See, e.g. , People v. Lampitok
, 207 I ll. 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 fac ts objectively viewed add up to, not what the office r on the scene believed they added up to.” People v. Moody
, 94 I ll. 2d 1, 10 (1983). This court is to assess the totality of the circ umstances, but the majority opinion holds that only one circ umstance needs to exis t to by pass rea sonable suspicion and demonstrate pr obable c ause. ¶ 29 Moreove r, the risks of expanding the definition of so l i ci t at i o n an d d i m i n i s h ing the probable cause threshold are well known. Historically
, there have been objections to extending sol icitation to minor crimes, based on the fear that false char ges m ay rea dily be b rought, either out of misunderstanding or hara ssment. 2 Way ne R. L aF ave, Subs t an t i v e Criminal L aw § 1.1(b), at 193 (2d ed. 2003). The potential for false ch arge s under the ordinanc e incr ease s dramatica lly as a r esult of this decision. ¶ 30 In sum, the majority opinion finds probable cause to arr est for solici t at i o n u n d erthe ordinanc e, based o n an expanded definition of the term, without any evidenc e that Nea l solicited anyone, and absent any other circ umstances sug g esting criminal activi t y , m ere ly beca use Nea l was saying the word “blows” in public. For all of the afor ementioned rea sons, Irespe ctfully

dissent.

As the m aj ori ty not es, the Fir st Dis tr ic t, Six th Divisi on, of thi s cou rt has rul ed tha t pro bab le 1

cau se did not exi st unde r s i mi l a r f act ual ci rc um st anc es, even when the re was eviden ce the ar re st

occ urr ed a t a pl ace known fo r n ar cot ic s s al es. Peop le v. Gr ant , 201 1 I l Ap p ( 1st ) 0 9110 7.

-8-