Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 14 CR 16710 The
Honorable Raymond Myles, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Katie Anderson
of State for Appellate Defender's Office, of Chicago, for
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg and Paul Castiglione, Assistant State's
Attorneys, of counsel), for the People.
JUSTICE HYMAN delivered the judgment of the court, with
opinion. Justice Pucinski concurred in the judgment and
1 The arresting officer saw Alvin Brown taking a drink of
beer while standing in a gas station parking lot and arrested
him for violating the Chicago Municipal Code which prohibits
drinking on a "public way." Chicago Municipal Code
§ 8-4-030 (amended at Chi. City Clerk J. Proc. 52958
(May 8, 2013)). Brown had in his pocket a controlled
substance and was later tried and convicted for possessing
2 Brown argues that because his arrest was without probable
cause, his motion to quash arrest and suppress evidence
should have been granted. We agree, and reverse. The gas
station parking lot does not fit within "public
way," which the Municipal Code defines as "any
sidewalk, street, alley, highway or other public
thoroughfare." Chicago Municipal Code § 1-4-090(f)
(amended at Chi. City Clerk J. Proc. 44485 (Dec. 12, 2012)).
Moreover, the officer lacked a reasonably objective basis for
believing that Brown was on the "public way."
4 Three Chicago police officers on routine patrol in an
unmarked police car pulled into a gas station located at 76th
and Halsted Streets in Chicago. They noticed a group of four
men, including Brown, standing in the parking lot. Officer
Brendan Roberts saw Brown drinking a beer. Roberts approached
Brown and arrested him for violating section 8-4-030(a)(1) of
the Municipal Code by "drinking alcohol on the public
way" (Chicago Municipal Code § 8-4-030(a)(1)
(amended at Chi. City Clerk J. Proc. 52958 (May 8, 2013))).
Roberts searched Brown's pants pocket and found a small
plastic bag containing one "ecstasy" pill. Brown
was charged with possession of a controlled substance under
section 402(c) of the Illinois Controlled Substance Act, a
Class 4 felony. 720 ILCS 570/402(c) (West 2014).
5 At the same time, Officer Martin McDonnell searched
Brown's codefendant, Louis Foster, and found crack
cocaine hidden in his pants.
6 Both Brown and Foster moved to suppress the drugs found
when they were searched, arguing both searches violated the
fourth amendment. The State responded that the police
officers believed that the ordinance applied to the gas
station parking lot as a "public way" and that this
was a reasonable mistake of law.
7 Brown was convicted after a bench trial of possession of a
controlled substance and sentenced to two years'
8 Motion to Quash Arrest and Suppress Evidence
9 Chicago police officer McDonnell testified at the hearing
on the motion to suppress. On August 30, 2014, McDonnell,
Officer Brendan Roberts, and Officer Matthew Kennedy were on
routine patrol in an unmarked car. At 12:50 a.m., the
officers pulled into a 24-hour gas station. McDonnell saw a
group of four or five men standing in the parking lot. Brown
was drinking a can of beer. Roberts approached Brown and
arrested him for violating a Chicago ordinance by drinking
alcohol on the "public way." Roberts searched Brown
while McDonnell did a protective pat-down search of Louis
Foster. McDonnell found 15 plastic bags of crack cocaine in
Foster's pants. McDonnell did not see Foster doing
anything illegal before the search.
10 McDonnell stated the area was "high-crime" and
was known for narcotics sales, and in the past there had been
"numerous" calls of people with guns. The trial
court overruled defense counsel's objections to these
answers. McDonnell also stated the officers were on routine
patrol and were not responding to any complaints about
activity at the gas station.
11 Officer Roberts searched Brown and found a bag in his
pants pocket containing one pill that later proved to be
"ecstasy" (benzylpiperazine). When Brown was
arrested, there were no warrants, investigative alerts, or
calls regarding either Brown or illegal activity in the area.
In the past, Roberts had responded to calls of persons with
guns and people drinking at the same location. Roberts
described the lot as "open" with access for the
public to come and go.
12 The State contended that Brown was properly arrested, thus
justifying the search incident to that arrest.
13 The trial court denied Brown's motion, finding it was
"reasonable that most citizens including the police do
not clearly understand that gas stations are not public ways
giving the public ingress and egress thereto. Although, this
is a mistake of law, it is however reasonable." The
trial court noted three factors contributing to the
reasonableness of the officers' belief: (i) gas stations
cannot hold a liquor license in Chicago (Chicago Municipal
Code § 4-60-090 (added Dec. 9, 1992)), (ii) Brown was
standing in the parking lot near a car parked next to the gas
station vacuum, and (iii) in the past police had received
complaints about people drinking and people with guns at the
14 The trial court granted Foster's motion to suppress,
finding the officers did not see him do anything other than
standing near Brown. They did not see him drinking, had no
warrants for his arrest, and no information that he had
violated the law. Granting Foster's motion to suppress
had the substantive effect of dismissing the charges against
him. See People v. Bonilla, 2018 IL 122484, ¶
16 At Brown's bench trial, Officer Roberts testified to
essentially the same facts as at the hearing on the motion to
suppress. The trial court found Brown guilty of possession of
a controlled substance and sentenced him to two years'
intensive probation plus $1109 in fines and fees.
18 Brown argues that the trial court erred when it denied his
motion to quash his arrest and suppress the evidence. Brown
asserts his arrest and search violated his fourth amendment
rights because his arrest was without probable cause; thus,
the evidence obtained as a result must be suppressed as
"fruit of the poisonous tree." See Dunaway v.
New York,442 U.S. 200, 207, 216 (1979); Wong Sun v.
United States,371 U.S. 471, 484-85 (1963). Under the
fourth amendment, every person has a right against
unreasonable searches and seizures. U.S. Const., amend. ...