The opinion of the court was delivered by: Justice Cerda
Appeal from the Circuit Court of Cook County Honorable Edward M. Fiala, Jr., Judge Presiding.
The issue in this case is whether the City of Chicago's sound- device restriction ordinance is unconstitutional. The vehicle driven by defendant, Mario Arguello, was stopped and searched by the Chicago police because of defendant's violation of Chicago's sound-device restriction ordinance (Chicago Municipal Code §11-4-1115 (amended July 31, 1996)) (the ordinance), which restricts music playing in a vehicle if it can be heard more than 75 feet away. Defendant was charged with criminal offenses after he was found in possession of illegal drugs. Defendant moved to suppress the evidence and to quash the arrest. In granting the motion, the circuit court of Cook County held that the ordinance was unconstitutional. We reverse and remand.
It was stipulated at the hearing on the motion to suppress that a police officer would testify that on October 29, 1999, from 90 feet away, he heard music coming from the vehicle driven by defendant. The vehicle was pulled over for violation of the ordinance. He detected a strong odor of burning cannabis. The officer then saw cannabis in an open ashtray and arrested defendant. Cocaine was found in a search of defendant at the police station. Defendant was charged with possession of cannabis and a controlled substance.
Defendant filed a motion to quash his arrest and to suppress the evidence. Defendant argued that the ordinance was unconstitutional because it violated the first amendment. Defendant relied on People v. Jones, 188 Ill. 2d 352, 721 N.E.2d 546 (1999), in which the Illinois Supreme Court held that an Illinois sound amplification statute (625 ILCS 5/12-611 (West 1996)), which prohibited amplified sound that could be heard 75 feet or more from a vehicle, was unconstitutional because the statute contained an exception for vehicles engaged in advertising. Defendant argued that the Chicago ordinance similarly was not content neutral or based upon any narrowly drawn compelling city interest.
The trial court ruled that the ordinance was unconstitutional, finding that the ordinance was (1) essentially the same as the state statute involved in Jones; (2) content-based; and (3) not based on any city interest that could achieve any proper legislative end. The trial court granted the motion to suppress.
The State appealed. Defendant did not file a brief, and the case was taken on appellant's brief only. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 130-31, 345 N.E.2d 493 (1976) (if the record is simple and the claimed error can be decided without the aid of an appellee's brief, a court of review should decide the merits of an appeal).
The standard of review is de novo because the issue on appeal is whether the ordinance is constitutional. People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000).
"No person shall play, use, operate or permit to be played, used or operated, any radio, tape recorder, cassette player or other device for receiving broadcast sound or reproducing recorded sound if the device is located:
(1) On the public way; or
(2) In any motor vehicle on the public way; and if the sound generated by the device is clearly audible to a person with normal hearing at a distance greater than 75 feet. This section shall not apply to any person participating in a parade or public ...