Appeal from the Circuit Court of Cook County. No. 09 CR 0398 The Honorable Maureen Slattery Boyle, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice McBride specially concurred, with opinion.
Justice R.E. Gordon dissented, with opinion.
Defendant Ronnie Grant was arrested by Chicago police officers for violating the city of Chicago ordinance prohibiting the solicitation of an unlawful business on a public way. The officers, on a narcotics suppression mission, observed the defendant yell "dro, dro" at a passing vehicle while standing at a known narcotics sales spot, precipitating the defendant's arrest. The custodial search of the defendant resulted in the recovery of contraband. The circuit court denied the defendant's motion to quash arrest and suppress evidence. After a stipulated bench trial, the defendant was found guilty of Class 4 possession of cocaine and sentenced to three years' imprisonment. He contends he was arrested without probable cause, which, if established, means the circuit court erred in denying his suppression motion. On our de novo review, we hold the circuit court erred in denying the defendant's motion as his arrest was not supported by probable cause. We reverse.
The record shows that the defendant was charged with two counts of possession of a controlled substance with the intent to deliver after police found cocaine on his person in a second custodial search following his arrest. The defendant challenged his arrest in a motion to quash arrest and suppress evidence.
At the suppression hearing, the defendant called Chicago police officer Stephen Hefel as his witness. The officer testified he has been a police officer for about three years. At 11:03 p.m., on November 29, 2008, he was working with five other officers on a two-vehicle narcotics suppression mission, where the officers traveled to previously known narcotics sales spots to "apprehend anybody in the commission of selling narcotics." At the time, he and two other officers were in plainclothes and in the first of the two police vehicles traveling westbound on Fifth Avenue in Chicago. From his front passenger seat, Officer Hefel first spotted the defendant 100 to 150 feet away at the north entrance of the Chicago Housing Authority building at 3647 West Fifth Avenue. Although other people were outside the building, the defendant was standing alone. As the officers drove within 20 to 25 feet of the defendant, Officer Hefel heard the defendant yell "dro, dro" to a passing car traveling in front of the police vehicles, but the car did not stop. Officer Hefel noted the defendant's location was a "weed spot." The three officers agreed they had heard the defendant say "dro, dro" and decided to detain him. They drove diagonally across the opposing lane of traffic to a spot within 5 to 10 feet of the defendant, at which point the defendant looked in their direction and froze. He did not have anything in his hands; nor did he drop anything. The officers exited their vehicle, ran toward the defendant, and arrested him.
Officer Hefel testified that Officer Suing performed a custodial search of the defendant in Officer Hefel's presence and found four small, red-tinted plastic baggies from the defendant's right coat pocket. Each packet contained a green leafy substance, which Officer Hefel suspected to be cannabis. Officer Hefel acknowledged he did not observe the defendant engage in any narcotic sales; nor he did not have a search or an arrest warrant for the defendant and the defendant did not consent to the search.
On the State's cross-examination, Officer Hefel testified that he has made about 200 narcotics arrests in the area where the defendant was found. He is familiar with terms used in the sale of narcotics and stated that the term "dro, dro" refers to cannabis. Officer Hefel testified he maintained an unobstructed view of the defendant after first observing him because the defendant never moved from the area. No one else in the area yelled "dro, dro." The defendant was placed in custody for violating section 10-8-515 of the Chicago Municipal Code, which prohibits using a public way to "solicit any unlawful business." Chicago Municipal Code §10-8-515 (added April 1, 1998).
After the defendant was taken to the police station, a more thorough custodial search was conducted. To conduct the custodial search, the officers uncuffed the defendant and had him remove his outer layer of clothing. From the rear waistband of the defendant's pants, the officers recovered a plastic bag with four smaller plastic baggies inside, each of which contained a white rock-like substance, suspected to be crack cocaine. The officers also recovered $160 from the defendant.
On redirect examination, Officer Hefel testified that he learned through his experience and speaking with numerous arrestees that "dro, dro" refers to a certain type of cannabis and yelling "dro" is a way of soliciting business. No other witness testified at the hearing.
Based on Officer Hefel's credible testimony, the circuit court denied the defendant's motion to quash arrest and suppress evidence. Thereafter, the State amended count II of the information to delete "with intent to deliver"; a stipulated bench trial followed. In addition to Officer Hefel's testimony, the State and the defendant stipulated to the chain of custody of the suspected cocaine and to the results of the crime lab analysis that one of the four bags tested positive for less than 0.1 grams of cocaine and that the total estimated weight of all four was 0.3 grams. The court found the defendant guilty of Class 4 possession of cocaine and sentenced him to three years' imprisonment. This appeal followed.
The defendant asserts the officers did not have probable cause to arrest, which renders the contraband recovered from his person during the custodial search subject to suppression as a product of an illegal arrest. People v. Mendoza, 62 Ill. App. 3d 609, 622 (1978) (citing Beck v. Ohio, 379 U.S. 89 (1964)). The defendant contends we should look only to "the information available to the officers preceding the arrest" to assess whether the arrest is supported by probable cause. For this position, the defendant relies on People v. Tisler, 103 Ill. 2d 226, 237 (1984) (probable cause is based on " 'the knowledge possessed by the officer at the time of arrest' ") (quoting People v Wright, 41 Ill. 2d 170, 174 (1968))).
The State contends that the "defendant's shouts of 'dro dro,' a term for cannabis, to passing vehicles in a known narcotics area constituted probable cause to effectuate a warrantless arrest of defendant for soliciting an unlawful business pursuant to [section 10-8-515 of the] Chicago Municipal Code." The State quotes People v. Love, 199 Ill. 2d 269, 279 (2002), for the proposition that probable cause existed because " 'the facts known to the officer at the time of the arrest [were] sufficient to lead a reasonably cautious person to believe that the person has committed a crime.' "
The parties agree on the standard of review. Historical facts are subject to review only for "clear error." People v. Luedemann, 222 Ill. 2d 530, 542 (2006) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). In other words, factual findings may be rejected only if they are against the manifest weight of the evidence. Luedemann, 222 Ill. 2d at 542. We review de novo "determinations of *** probable cause." Ornelas, 517 U.S. at 699.
There are no factual disputes between the parties. In reviewing the circuit court's ruling, we take the facts elicited from Officer Hefel at the suppression hearing that are consistent with the circuit court's denial of the ...