People v. Lee
803 N.E.2d 640
Ill. App. Ct.
2004
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*1 rеasons, For the foregoing judgment of the circuit court of Winnebago County is affirmed.

Affirmed. CALLUM, JJ.,

GROMETER and concur. THE PEOPLE ILLINOIS, OF THE OF STATE Plaintiff-Appellee, v. JAMES

LEE, Defendant-Appellant. Third District No. 3 - 02-0303 Opinion January 16, filed 2004. *2 Ottawa, Office, of Defender’s (argued), Appellate of State

Mark D. Fisher for appellant. (Lawrence Tomczak, Attorney, M. Bauer and Judith of Joliet Jeff State’s Office, Attorneys of Kelly Appеllate Prosecutor’s (argued), of State’s

Z. both counsel), People. for the of the court: opinion

JUSTICE BARRYdelivered the a Lee, unlawful of possession of Appellant, James was convicted of a substance possession and unlawful controlled controlled substance when found on his intent to as a result of cocaine with deliver ‍‌‌‌​​‌​‌‌​‌​​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​​‌‌‍outlawing municipal ordinаnce he was arrested for of a Joliet violation activity. Lee drug-related was loitering purpose engaging for the his years’ imprisonment. appeals a Lee sentenced to term four convictions.

FACTS posses- indicted for unlawful January 2001, James Lee was On posses- cocaine and unlawful containing a controlled substance sion of July 2, On a intent to deliver. sion of controlled substance with at the on his the cocaine found suppress Lee filed motion to for the ar- cause existed arguing probable that no time of his arrest sup- hearing on the motion testify at the rest. The witnesses of Joliet Guy and Jones of press Officers David Mueller were August on p.m. that at The officers testified department. go to the them to dispatch instructing call from they received a Streets, an area had been and Mississippi corner of Second activity. gang having significant amount designated as from a citizen of phone call received investigate The officers were drugs selling were indicating that three African-American males corner from scene, the officers observed the on thе corner. Once at the During to five minutes. two blocks for two approximately a distance of time, this pull officers observed a van over to a curb in an area signs indicating, Parking, Stopping, Standing.” “No or Officer Jones testified that the van was stopped at the curb for 10 to 15 seconds. The individuals on the corner approached the van began a conversation with the passengers. Of the individuals who on were corner, Officer Mueller recognized Willard May gang member and was aware Lee had been previously arrested drug-related offenses, although he had not been convicted.

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

The Joliet ordinance еnumerates nine being among criteria as circumstances to be considered when suspect purpose. Officer Jones testified that he felt Lee violating 3, 4, was subsections and 9 of section arrest, at the time of his while officer Mueller believed that Lee was violating subsections and 9. Officer Mueller stated *3 supervisors that his suggest that officers find three violations of the circumstances in enumerated section finding before of violation ordinance, the although violation of sup- two subsections will also port an arrest. Officer any Jones testified violation one support subsection loitering an arrest for the purpose engaging drug-related in activity. After hearing testimony, officers’ the trial court denied the suppress. mоtion to

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

ANALYSIS Lee first criminal argues defining that the Joliet ordinance loitering offense of for purpose engaging drug-related in a activ ity vague. unconstitutionally is Whether a statute is constitutional Williams, an issue of which we law review de novo. that this contends Lee 851, ordinance, thus the Joliet down court should strike to that incident and the search eliminating the basis for Lee’s arrest to his convic- leading found the cocaine police which the tions. any for provides is “unlawful

The"Joliet ordinance issue public, to the thoroughfare, place oрen person any to in or near loiter circum- in a manner and under any private place public or near or activity.” in manifesting engage drug-related purpose stances on to goes § The statute 21—10.1 Municipal Joliet Code may be being “among the circumstances nine criteria as Joliet purpose manifested.” determining in whether such considered (1990). These criteria are: § Code 21—10.1 “(1) user, possessor,or seller known unlawful person Such (2) is a prohibiting his ***; currently subject to an order Such (3) area; Such high drug activity geographic in a presence or her a reasonable in a manner as raise person behaves such engagedin an unlaw- engage or about to in or is then that he ful person acting she is by examplе only, activity, including way of such (4) ‘lookout’; person is identified physically Such ‘gang’ a member of ‍‌‌‌​​‌​‌‌​‌​​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​​‌‌‍a or association which has the officer as (5) person transfers small purpose illegal drug activity; Such (6) fashion; currency in a furtive Such objects packages or (7) officer; flight of a Such upon appearance takes any or person manifestly endeаvors to conceal himself herself drug- reasonably be involved in an unlawful object which could activity; by public repute related The area involved is known trafficking; premises be an area of use and unlawful reported to law are known to have been enforcement involved suspected Municipal Code 21—10.1 drug activity.” unconstitutionally vague because that this ordinance is Lee contends drug- purpose “circumstances listing circumstances which activity” related and the ordinance section is manifested may such be considered conduct or establish provide adequate do not notice of the guidelines minimal for enforcement. ap the same rules are construing municipal

In *4 City plied the construction of statutes. govern as those which 53, 59 Morales, N.E.2d Chicago v. 177 Ill. 2d 687 duty court’s and it is the presumed Statutes are constitutional constitutionality enactment so as to affirm its legislative construe a construction. validity, reasonably susceptible if it to such 448, criminal Morales, 687 N.E.2d at 59. 177 Ill. 2d at strictly statutes are to be construed in favor of the accused and noth- ing should be taken by implication beyond intendment or the obvious or literal meaning Morales, of the statute. 448, 177 Ill. 2d at at N.E.2d 59.

A guarantees fundamental element of the process of due is the requirement proscription of a criminal statute clearly be Morales, 448, defined. 177 Ill. 2d at 687 N.E.2d successfully at 59. To challenge a being vague face, criminal statute as on its the statute vague must be impermissibly Morales, in аll its applications. 448, 2d at 687 N.E.2d at 59. To satisfy vagueness doctrine, criminal First, statute must meet two criteria. a criminal statute must be sufficiently so gives persons ordinary definite that it intelligence a reasonable opportunity distinguish between lawful and unlawful Morales, conduct. 2d Second, Ill. at penal at 60. adequately must define criminal offense in such manner encourage arbitrаry that does not and discriminatory enforcement. Morales, 177 Ill. 2d at 687 N.E.2d at 60. prohibiting

Ordinances loitering associated drug activity by have not been examined Illinois courts. With ordinances substan tially similar to the case, one issue in the instant the states of Ohio down, and Louisiana struck have them while the Washington state of upheld a similar Rowland, ordinance. See Akron v. Ohio St. (La. (1993); Muschkat, 618 N.E.2d 138 State v. 706 So. 2d 429 1998); City Luvene, Tacoma 118 Wash. 2d 827 P.2d 1374 (1992). We reasоning find the of the Ohio ‍‌‌‌​​‌​‌‌​‌​​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​​‌‌‍and Louisiana decisions persuasive.

The Joliet permits arrest when the accused loiters under “circumstances the purpose drug- activity”. § related Municipal Joliet Code 21—10.1 This sufficiently not definite ordinary person so can comprehend the prohibited Due process conduct. mandates that ordinary persons guess not required but, rathеr, at a meaning law’s can know what conduct is accordingly. forbidden and act 177 Ill. 2d at 449-50, A person reading 687 N.E.2d at 60. the ordinance cannot specific know what acts drug-related purpose. would “manifest” a While ordinance lists nine criteria to be used in determin ing a drug-related manifested, purpose has been states that the nine criteria are “among the circumstances which added.) mаy be (Emphasis considered.” Code 21— 10.1 “among” word indicates there are other may circumstances not enumerated in the ordinance which be used to form the basis an arrest and average conviction. The citizen can only speculate as to other circumstances law enforcement officers

787 By way purpose. a perceive plаce his of busi- standing outside it example, appears of business if that under the ordinance could be arrested ness in a and someone use an area known for unlawful located in for directions. pulls up and asks vehicle provide adequate also fails to drug-loitering ordinance

The Joliet provide minimal fail to Where lawmakers enforcement standаrds. enforcement, may permit a criminal law guidelines govern law juries to prosecutors, sweep policemen, that allows standardless 456, Ill. 2d at 687 predilections. 177 pursue personal their are drug-loitering at 63. Under the Joliet N.E.2d person’s conduct given unfettered discretion in whether criteria activity. are of the enumerated only manifests Not most raise (i.e., person behaves in such manner indefinite “such engage in or is then he or is about to reasonable she allows for drug-related activity”), but also engaged in an unlawful ambiguity nonenumerated factors. law enforcement consider testimony of Officers in the enforcement standards was evidenced hearing. indicated The officers suppression Mueller and Jones at the for Lee’s arrest. different criteria under the statute relied on disagreed the number of circumstances Furthermore, the officers as to can be made. Officer Mueller present must before an arrest listed under section indicated that or three of the circumstances two arrest, while Of- to effectuate an of the ordinance should be found necessary. indiсated that one circumstance was ficer Jones provide Therefore, drug-loitering ordinance fails because the adequate conduct and does not delineate adequate notice of standards, the ordinance unconstitutional. enforcement ordinance is unconstitu- Having drug-loitering concluded that the seized incident to tional, determinе evidence we must next People be excluded. In of the ordinance must Lee’s arrest for violation (1996), 612 the Illinois Krueger, Ill. 2d v. exclusionary arising rule out of that the Supreme Court determined even if the admission of evidence precludes the state constitution acting to a statute later by police pursuant good seized in faith ar- case, the officers the instant determined to be unconstitutional. In Because ordinance. to the Joliet pursuant rested Lee to the vague, any pursuant unconstitutionally in a search on Lee was seized statute in unlawful. The cocaine found suppressed. arrest and incident to this unlawful must be on remand without Accordingly, prevail the State could not because and the evidence, must be rеversed suppressed Lee’s convictions Smith, sentence vacated.

N.E.2d

Reversed.

McDADE, J., concurs. HOLDRIDGE,

PRESIDING JUSTICE specially concurring: The majority declares the Joliet ordinance unconstitutional on the grounds that the ordinance fails to adequate notice of the prohibited conduct, and establish adequate enforcement guidelines *6 for police officers. I disagree with thesе conclusions and believe the ordinance is Nevertheless, constitutional. since the officers (the lacked probable they cause when arrested James Lee event that produced drug issue), the agree evidence I majority’s with the ultimate conclusion that his conviction should be reversed.

1. Constitutionality of Ordinance Municipal ordinances arе according construed ‍‌‌‌​​‌​‌‌​‌​​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​​‌‌‍to the general rules statutory City Chicago Morales, construction. v. 177 Ill. 2d 440 (1997). It is axiomatic challenged that court must construe a statute as if constitutional is reasonably susceptible to such construction. It 177 Ill. 2d 440. is also axiomatic that a court’s objective paramount is legislature’s to ascertain and effectuate the Peoplе Boykin, intent. v. 94 Ill. 2d 138 In pursuing objec- this tive, the court must apply plain ordinary and meaning of the words Hicks, used in the statute. 164 Ill. 2d 218 The Joliet ordinance prohibits loitering in a manner and under circumstances manifesting engage to in activ- ity. Code 21—10.1 The plain meaning of this language majority’s contravenes conclusion. The word manifest by showing means “to make evident or certain or displaying.” (10th 1997). Collegiate Dictionary Merriam-Webster’s ed. word purpose “something up object means set an end to be at- tained”; hence the on purpose “by means intent.” Merriam- (10th 1997). Collegiate Dictionary Webster’s ed. These words (intent) establish a mens rea require, prerequisite element and to (overt conduct) arrest, an a suspect that exhibit some or display show an signaling intention to in drug-related activity. Thus the majority wrong in that “a supposing person standing outside his place business be could arrested under the ordinance if that drug business in an located area known for unlawful use and pulls up someone in a and vehicle asks directions.” Ill. because, according support not facts would at 787. Such businessper- in used of the words meaning plain certain making evident some act perform also have son would drug crime. commit he intended to that notice of adequate sufficiently clear The ordinance cannot, on notice placed are conduct. Citizens drug to violate an intention signaling acts loitering, commit while read businessperson if I the above-mentioned laws. am confidеnt standing outside his to avoid he not feel need up request directions. might building pull for fear that a motorist crimes, he can to commit ostensibly he harbors no intent Since long he so will not violate the ordinance rest assured that he hand, persons who do On the other his conduct to his intent. conforms they engage that if crimes are on notice placed intend to cоmmit intent, subject to arrest under they are signaling acts their overt give the word required An overt act is the ordinance. combined with the meaning. requirement, This ordinary plain intent, about majority’s alleviates the concern

mens rea element of notice. adequate sufficiently guide police clear to

The ordinance is also Although nine criteria provisions. sоme of the properly enforcing its act, specify an overt this omission does provided in the ordinance do not city did not because the council render the ordinance unconstitutional Rather, explained the council give not such criteria conclusive effect. may merely the criteria circumstances “which describe the ordinance has considered” in the overall determination of whether plain meaning of the guided by the been violated. Such consideration is *7 Thus, a known person if see a who is manifesting. police word (criterion suspicious and conduct 1), they may become drug user No. he has surveillance, they cannot arrest the because further but to violate signaling a current intention not сommitted an overt act engage in the officers see the If further surveillance laws. acts,1 him under the ordinance. they then can arrest overt plain language clear guidelines are from These process. satisfy I the demands of due they and believe other notes, courts from states ‍‌‌‌​​‌​‌‌​‌​​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​​‌‌‍majority appellate As three See State v. constitutionality of ordinances. have addressed the similar (La. 1998) (declaring ordinance Muschkat, 2d 429 706 So. acting for a transac as a “lookout” 1Examples of such acts include (criterion objects packages 3), furtively for cur transferring small tion No. (criterion (criterion 5), taking flight upon seeing a officer rency No. 6). No. unconstitutional); Rowland, City Akron v. 67 Ohio St. N.E.2d 138 (declaring unconstitutional); Luvene, Tacoma v. 118 Wash. 2d 827 P.2d 1374 (upholding constitutional). the ordinance as courts, Of these three only the Supreme Court Washington honored principles the axiomatic statutory analysis. Luvene, construction See Wash. 2d 827 P.2d 1374. I Accordingly, analysis believe that court’s is more reli analyses able than the in the Louisiana and Ohio cases.

2. Probable Cause Although I believe Joliet’s ordinаnce is constitu- tional, I would still reverse Lee’s conviction because the instant facts do probable not show cause for his At arresting arrest. most the offic- ers him standing observed on a speaking curb and to someone in an il- legally parked van. When combined surrounding with the circum- stances, such certainly observation was enough heighten officers’ and warrant furthеr surveillance.

should have waited watched for some signaling overt act that Lee intended to in drug-related activity. above, As discussed such approach statutory was mandated requirement that Lee engage in conduct requisite criminal intent. DEVELOPMENT, MILL INC., CREEK Petitioner-Appellant, v. THE al., PROPERTY TAX APPEAL BOARD et Respondents-Appellees. Third District No. 3 - 02-0596 Opinion filed rehearing October 2003. Modified on denial of

January 29, 2004.