Appeal from the Circuit Court of Cook County, Illinois. No. 09 CR 2798 Honorable John P. Kirby, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion. Presiding Justice Quinn concurred in the judgment and opinion. Justice Steele dissented, with opinion.
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 post-arrest search should therefore have been suppressed.
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.
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."
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, finding that Officer Malkowski testified credibly that defendant had been soliciting unlawful business on a street and thus had probable cause to arrest him.
Defendant filed a motion to reconsider, arguing that repeating "blows" to passers-by was by itself insufficient 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.
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.
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."
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).
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 ...