ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

KENNETH NEAL, Defendant-Appellant.

 District & No. First District, Third Division

Docket No. 1-09-2814

Filed June 29, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s conviction for unlawful possession of a controlled substance

was affirmed and the constitutionality of an ordinance prohibiting the

solicitation of unlawful business, the violation of which was the basis for

his arrest, was upheld over challenges of overbreadth and vagueness

where the court could properly conclude that the officers involved

witnessed defendant violate the ordinance and thus had probable cause to

arrest him, especiallywhen theysaw defendant standing at an intersection

in a ‘high gang and narcotics area” yelling “blows” to passers-by. 

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-CR-2798; the

Hon. John P. Kirby, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Peter Sgro, all of State

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,

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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

byitselfinsufficient 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).

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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

relyon training and experience to drawinferences 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 wayin Chicago, expresslyincluding 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 properlyconclude that officerswitnessed 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

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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 significantlylowers the threshold for probable cause. Accordingly, Irespectfullydissent.

¶ 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

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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

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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

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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.

As the majority notes, the First District, Sixth Division, of this court hasruled that probable 1

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.

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