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People v. Lee

January 16, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES LEE, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 00-CF-1614 Honorable Barbara Badger, Judge Presiding

[7] The opinion of the court was delivered by: Justice Barry

[8]  Appellant, James Lee, was convicted of unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver as a result of cocaine found on his person when he was arrested for violation of a Joliet municipal ordinance outlawing loitering for the purpose of engaging in drug-related activity. Lee was sentenced to a term of four years' imprisonment. Lee appeals his convictions.

[9]  FACTS

[10]   On January 17, 2001, James Lee was indicted for unlawful possession of a controlled substance containing cocaine and unlawful possession of a controlled substance with intent to deliver. On July 2, 2001, Lee filed a motion to suppress the cocaine found on his person at the time of his arrest arguing that no probable cause existed for the arrest. The only witnesses to testify at the hearing on the motion to suppress were officers David Mueller and Guy Jones of the City of Joliet police department. The officers testified that at 2:00 p.m. on August 15, 2000, they received a call from dispatch instructing them to go to the corner of Second and Mississippi streets, an area which had been designated as having a significant amount of gang and drug activity.

[11]   The officers were to investigate a phone call received from a citizen of Joliet indicating that three African-American males were selling drugs on the corner. Once at the scene, the officers observed the corner from a distance of approximately two blocks for two to five minutes. During this time, the officers observed a van pull over to a curb in an area with signs indicating, "No Parking, Stopping, or Standing." Officer Jones testified that the van was stopped at the curb for ten to fifteen seconds. The individuals on the corner approached the van and began a conversation with the passengers. Of the individuals who were on the corner, officer Mueller recognized Willard May as a gang member and was aware that Lee had been arrested previously for drug-related offenses, although he had not been convicted.

[12]   Although the officers did not see an exchange of money or drugs, they believed, based on their experience, that a drug transaction was about to take place. When the van pulled away, the officers approached the men on the corner and patted them down. The officers did not find any contraband or weapons during the pat down, but arrested Lee and the two other men for violating a Joliet municipal ordinance prohibiting loitering for the purpose of engaging in drug-related activity.

[13]   The Joliet ordinance enumerates nine criteria as being among the circumstances to be considered by officers when determining whether a suspect is manifesting a drug-related purpose. Officer Jones testified that he felt Lee was violating subsections 3, 4, and 9 of section (b) of the ordinance at the time of his arrest, while officer Mueller believed that Lee was violating subsections 3, 8, and 9. Officer Mueller stated that his supervisors suggest that officers find three violations of the circumstances enumerated in section (b) before finding a violation of the ordinance , although a violation of two subsections will also support an arrest. However, officer Jones testified that a violation of any one subsection of the ordinance would support an arrest for loitering with the purpose of engaging in drug-related activity. After hearing the officers' testimony, the trial court denied the motion to suppress.

[14]   A jury trial commenced on February 21, 2002. Officer Jones testified in significantly the same manner as his testimony during the motion to suppress and indicated that he discovered six bags containing white milky substances in Lee's right pant pocket when a search incident to arrest was conducted. The substances contained in the bags tested positive for cocaine and cumulatively weighed .8 gram. Following its deliberations, the jury convicted Lee on both charges. The court sentenced Lee to a term of four years imprisonment. Lee appeals his convictions.

[15]   ANALYSIS

[16]   Lee first argues that the Joliet ordinance defining the criminal offense of loitering for the purpose of engaging in a drug-related activity is unconstitutionally vague. Whether a statute is constitutional is an issue of law which we review de novo. People v. Williams, 329 Ill. App. 3d 846, 851, 769 N.E.2d 518, 522 (2002). Lee contends that this court should strike down the Joliet drug loitering ordinance, thus eliminating the basis for Lee's arrest and the search incident to that arrest during which the police found the cocaine leading to his convictions.

[17]   The Joliet ordinance at issue provides that it is "unlawful for any person to loiter in or near any thoroughfare, place open to the public, or near any public or private place in a manner and under circumstances manifesting the purpose to engage in drug-related activity." Joliet Municipal Code Section 21-10.1 (1990). The statute goes on to provide nine criteria as being "among the circumstances which may be considered in determining whether such purpose is manifested." Joliet Municipal Code Section 21-10.1 (1990). These criteria are:

[18]   (1) Such person is a known unlawful drug user, possessor, or seller . . . ; (2) Such person is currently subject to an order prohibiting his or her presence in a high drug activity geographic area; (3) Such person behaves in such a manner as to raise a reasonable suspicion that he or she is about to engage in or is then engaged in an unlawful drug-related activity, including by way of example only, such person acting as a "lookout"; (4) Such person is physically identified by the officer as a member of a "gang" or association which has as its purpose illegal drug activity; (5) Such person transfers small objects or packages for currency in a furtive fashion; (6) Such person takes flight upon the appearance of a police officer; (7) Such person manifestly endeavors to conceal himself or herself or any object which reasonably could be involved in an unlawful drug-related activity; (8) The area involved is by public repute known to be an area of unlawful drug use and trafficking; or (9) The premises involved are known to have been reported to law enforcement as a place suspected of drug activity. Joliet Municipal Code Section 21-10.1 (1990)

[19]   Lee contends that this ordinance is unconstitutionally vague because the phrase "circumstances manifesting the purpose to engage in drug-related activity" and the ordinance section listing circumstances which may be considered in determining whether such purpose is manifested do not provide adequate notice of the prohibited conduct nor establish minimal guidelines for enforcement.

[20]   In construing a municipal ordinance, the same rules are applied as those which govern the construction of statutes. City of Chicago v. Morales, 177 Ill. 2d 440, 447, 687 N.E.2d 53, 59 (1997). Statutes are presumed constitutional and it is the court's duty to construe a legislative enactment so as to affirm its constitutionality and validity, if it is reasonably susceptible to such a construction. Morales, 177 Ill. 2d at 448, 687 N.E.2d at 59. However, criminal statutes are to be strictly construed in favor of the accused and nothing ...


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