                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Grant, 2011 IL App (1st) 091107




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      RONNIE GRANT, Defendant-Appellant.



District & No.               First District, Sixth Division
                             Docket No. 1–09–1107


Filed                        June 17, 2011


Held                         There was no probable cause to arrest defendant for a violation of an
(Note: This syllabus         ordinance prohibiting the solicitation of unlawful business based on an
constitutes no part of the   officer’s observation of defendant standing on a public way shouting
opinion of the court but     “dro, dro” to passing motorists, since the facts known to the officer
has been prepared by the     constituted no more than a reasonable suspicion under Terry, and
Reporter of Decisions for    therefore, the trial court erred in denying defendant’s motion to quash
the convenience of the       his arrest and suppress the cocaine discovered on his person, and
reader.)                     because the State could not sustain defendant’s conviction for unlawful
                             possession of cocaine without the evidence that should have been
                             suppressed, his conviction for that offense was reversed outright and the
                             sentence was vacated.


Decision Under               Appeal from the Circuit Court of Cook County, No. 09–CR–0398; the
Review                       Hon. Maureen Slattery Boyle, Judge, presiding.



Judgment                     Reversed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Brian A. McNeil, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the
                           People.


Panel                      PRESIDING JUSTICE GARCIA delivered the judgment of the court,
                           with opinion.
                           Justice McBride specially concurred, with opinion.
                           Justice R. Gordon dissented, with opinion.



                                            OPINION

¶1          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.

¶2                                        BACKGROUND
¶3          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.
¶4          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


                                                 -2-
     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.
¶5       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.
¶6       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 Apr. 1, 1998).
¶7       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.
¶8       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.
¶9       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.



                                              -3-
¶ 10                                         ANALYSIS
¶ 11        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))).
¶ 12        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.’ ”
¶ 13        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.
¶ 14        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 defendant’s suppression motion. See People v. Wear,
       371 Ill. App. 3d 517, 530 (2007), aff’d, 229 Ill. 2d 545 (2008) (“[w]hen interpreting a
       judgment, we strive to effectuate the trial court’s intent”). Whether the unchallenged facts
       adduced at the suppression hearing support a finding of probable cause presents a question
       of law. People v. Pitman, 211 Ill. 2d 502, 511-12 (2004).
¶ 15        The State does not contend that anything short of a full-blown arrest of the defendant
       occurred immediately upon the officers confronting and handcuffing the defendant. Nor does
       the State make any argument that probable cause existed to support the defendant’s arrest for
       the charge of cannabis or cocaine possession.
¶ 16        To justify a warrantless search incident to an arrest, the State must demonstrate probable
       cause to justify the defendant’s arrest. “Probable cause for arrest exists when facts and
       circumstances within the arresting officer’s knowledge are sufficient to warrant a man of
       reasonable caution in believing that an offense has been committed and that the person
       arrested has committed the offense.” People v. Lippert, 89 Ill. 2d 171, 178 (1982).
       “Consistent with our precedent, our analysis begins, as it should in every case addressing the
       reasonableness of a warrantless search, with the basic rule that ‘searches conducted outside
       the judicial process, without prior approval by judge or magistrate, are per se unreasonable
       under the Fourth Amendment–subject only to a few specifically established and well-
       delineated exceptions.’ ” Arizona v. Gant, 556 U.S. ___, ___, 129 S. Ct. 1710, 1716 (2009)


                                                 -4-
       (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). A search incident to a lawful
       arrest is one such exception. Gant, 556 U.S. at ___ , 129 S. Ct. at 1716 (“The exception
       derives from interests in officer safety and evidence preservation that are typically implicated
       in arrest situations.”).
¶ 17        At the suppression hearing, the defendant established a prima facie case that a
       warrantless search was conducted based on the defendant’s warrantless arrest. “The burden
       of production then shifted to the prosecution to [establish probable cause].” People v. F.J.,
       315 Ill. App. 3d 1053, 1057 (2000). In other words, “[o]nce a defendant challenges a
       warrantless search, it becomes the State’s burden to show that the search [is constitutional].”
       People v. Rushing, 272 Ill. App. 3d 387, 390 (1995). “When a police officer has proceeded
       without a warrant to search, seize evidence, or arrest a person, the trial court making a
       probable-cause determination is to apply standards at least as stringent as those that guide
       a magistrate in deciding whether to issue a warrant.” Tisler, 103 Ill. 2d at 236.
¶ 18        The defendant contends that it is fair to infer that the officers arrested the defendant with
       the prospect of recovering contraband from his person based on their narcotics suppression
       mission. Grounded on this inference, the defendant claims that we should analyze his fourth
       amendment claim based on the actual charges filed against him. To support this position, the
       defendant noted at oral argument that an arrest imposes the same intrusion, whether it is
       based on an ordinance violation or a criminal offense, so the probable cause showing should
       be no less demanding simply because the defendant is arrested under a city ordinance aimed
       at stemming, at least in part, unlawful sales of narcotics rather than a state statute prohibiting
       possession of a controlled substance. See Lippert, 89 Ill. 2d at 179 (quoting Professor
       LaFave’s treatise that suggests the probable cause test may be more stringent when the
       question confronting the officer is whether a crime had occurred).
                “ ‘[T]he probable cause test is a “compromise” for accommodating the “often
                opposing interests” of privacy and law enforcement. The compromise might well be
                struck somewhat differently in cases where the uncertainty is whether any crime has
                occurred, for it appears that the privacy and law enforcement interests ought to be
                weighed somewhat differently in that context.’ “ Lippert, 89 Ill. 2d at 179 (quoting
                1 Wayne R. LaFave, Search and Seizure § 3.2, at 484-85 (1978)).
¶ 19            In his testimony, Officer Hefel made clear the purpose of the narcotics suppression
       mission: “We were going to previously known narcotics sales spots to see if we could
       apprehend anybody in the commission of selling narcotics.” (Emphasis added.) Officer Hefel
       conceded that the defendant was never observed selling narcotics. Rather, he and his fellow
       officers arrested the defendant “for the exploitation [sic] of unlawful business.” Of course,
       ultimately, the defendant faced only charges stemming from the recovery of the cocaine from
       the defendant’s person upon the second custodial search, which were only discovered after
       his arrest for the ordinance violation. The question remains whether the petty crime of an
       ordinance violation occurred under the facts adduced at the suppression hearing.

¶ 20                    Probable Cause Based on an Ordinance Violation
¶ 21       Because it is the State’s burden to demonstrate a constitutional arrest, we confine our

                                                  -5-
       analysis to the State’s contention that probable cause existed to arrest the defendant for an
       ordinance violation. For the State, the simple act of shouting “dro, dro” at a passing vehicle
       at a known narcotics hot spot constituted probable cause to arrest the defendant for violating
       the city ordinance. The ordinance violation arrest made the defendant subject to a custodial
       search, which resulted in the recovery of cannabis, making the defendant subject to a state
       criminal charge and a further custodial search, which resulted in the recovery of cocaine.
¶ 22        The defendant asserts that the information the State presents as constituting probable
       cause amounted to no more than reasonable suspicion to permit an investigative stop. See
       Terry v. Ohio, 392 U.S. 1, 22 (1968) (an officer may temporarily stop a person for brief
       questioning if the officer reasonably believes that the person has committed or is about to
       commit a crime). He reasons that the United States Supreme Court has established a bright
       line that an individual’s presence alone at a known narcotics spot is not sufficient to establish
       reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s
       presence in an area of expected criminal activity, standing alone, is not enough to support a
       reasonable, particularized suspicion that the person is committing a crime.”). If an
       individual’s presence at “an area of expected criminal activity” cannot justify a Terry stop,
       then it follows that the mere yelling of “dro, dro” by an individual at that same spot cannot
       elevate the suspicion of criminal activity past what is required to justify a Terry stop, that is,
       to a point of providing legal justification for an arrest.
¶ 23        The instant defendant implies that the interests of law enforcement are adequately met
       by an investigative stop by the officers, which might have led to the development of
       additional facts to establish probable cause to arrest. “ ‘The Fourth Amendment does not
       require a policeman who lacks the precise level of information necessary for probable cause
       to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On
       the contrary, Terry recognizes that it may be the essence of good police work to adopt an
       intermediate response.’ ” (Emphasis added.) Lippert, 89 Ill. 2d at 187 (quoting Adams v.
       Williams, 407 U.S. 143, 145 (1972)). Because the officers had at most reasonable suspicion,
       the arrest and search of the defendant were unreasonable under our fourth amendment
       jurisprudence because the officer observed no exchange between the defendant and another
       citizen. See People v. Byrd, 408 Ill. App. 3d 71, 77 (2011) (“A single hand-to-hand street
       exchange, between a defendant and a person never questioned regarding what he or she
       received, has generally been held insufficient to find reasonable probability that one of the
       items exchanged was actually contraband.”).
¶ 24        The parties do not provide us with a single case that addresses probable cause in the
       context of an ordinance violation; nor has our research discovered such a case. To support
       its contention that the defendant was properly arrested for violating the city ordinance, the
       State relies on this court’s decision in Powell, which reversed the circuit court’s ruling that
       the ordinance was unconstitutionally vague. City of Chicago v. Powell, 315 Ill. App. 3d 1136
       (2000). Powell remains the only opinion interpreting the city ordinance at issue. We examine
       in depth the Powell decision to address the State’s contention that probable cause existed for
       the defendant’s arrest.
¶ 25        “A defendant has the fundamental right under the United States and Illinois Constitutions
       to be informed of the nature and cause of criminal accusations made against him. The ‘nature

                                                  -6-
       and cause’ of a criminal accusation refers to the crime committed rather than the manner in
       which it was committed.” Powell, 315 Ill. App. 3d at 1140-41 (citing People v. DiLorenzo,
       169 Ill. 2d 318 (1996)). “Where a statute does not specifically define the crime, or does so
       only in general terms, the charge must go beyond the words of the statute; the facts that
       constitute the crime must be specifically set forth.” Powell, 315 Ill. App. 3d at 1143 (citing
       People v. Grieco, 44 Ill. 2d 407 (1970)). Section 111–3(a) of the Code of Criminal Procedure
       of 1963 (725 ILCS 5/111–3(a) (West 2008)) requires that a charge set forth the nature and
       elements of the offense. Powell, 315 Ill. App. 3d at 1141.
¶ 26       Nowhere in its brief does the State provide us with the explicit nature and elements of
       the ordinance violation that it contends provided the basis for the arrest. That a violation was
       presumably made out is summarized in its contention that “Officer Hefel had probable cause
       to arrest defendant for shouting ‘dro, dro’ to passing vehicles because defendant’s speech
       was crucial to committing the solicitation of unlawful business.” The State plainly asserts:
       “Defendant has no reason to shout ‘dro, dro’ to passing vehicles in a known narcotic[s] area
       unless defendant intended to sell narcotics. Thus, Officer Hefel had probable cause to arrest
       defendant for soliciting the illegal sale of narcotics.”
¶ 27        In Powell, we analyzed two pending complaints to determine the legal sufficiency of
       each when challenged by a motion to dismiss. “[A] complaint alleging solicitation of
       unlawful business sufficiently informs a defendant with reasonable certainty of the nature
       and cause of that charge if it contains information establishing the type of unlawful business
       that the defendant is accused of soliciting and the factual basis for such a charge.” (Emphasis
       added.) Powell, 315 Ill. App. 3d at 1143. “Defendants assert that the trial court’s dismissal
       of the charges should be affirmed because the charging documents were fatally defective
       under Illinois law.” Id. at 1140. Defense counsel argued that Powell’s complaint “ ‘fails to
       state any cause for which Mr. Powell could be arrested.’ ” (Emphasis added.) Id. at 1142.
¶ 28       Of course, because no complaint based on an ordinance violation was ever filed against
       the instant defendant, the requirement that an ordinance violation be charged with
       “reasonable certainty” to permit an arrest in the context of this case is problematic.
       Nonetheless, the facts are sufficiently spread of record to permit our review as to whether an
       ordinance violation could be properly charged under the circumstances of this case. We
       consider whether the facts adduced at the suppression hearing set out in an ordinance-
       violation complaint would withstand a motion to dismiss under Powell.
¶ 29       In Powell, we concluded that one of the complaints at issue was fatally defective.
                   “[I]t appears that the only defective complaint is the one against defendant
                   Woods. That complaint charges that Woods ‘[c]ommitted the offense of
                   soliciting unlawful business in that he knowingly and unlawfully interfered [with]
                   and impeded the flow of vehicular and pedestrian traffic by standing at above
                   address and was heard yelling “blows” to passing motorist and pedestrians.’ The
                   complaint does not describe the type of unlawful business that Woods allegedly
                   solicited. *** Therefore, Woods was properly dismissed.” Id. at 1143.
¶ 30       The facts elicited in this case during the hearing on the motion to quash arrest and
       suppress evidence are indistinguishable from the facts set forth in the complaint we found


                                                 -7-
       was subject to dismissal in Powell. In other words, the facts here regarding the alleged
       violation by the defendant of the city ordinance set forth in an ordinance-violation complaint
       would be fatally deficient under Illinois law, making it subject to a motion to dismiss under
       Powell. It necessarily follows that the same facts, fatally deficient under Powell, would fall
       short of demonstrating probable cause, as a matter of law, to permit his arrest for violating
       the city ordinance. See Powell, 315 Ill. App. 3d at 1142 (motion to dismiss lies where a
       complaint fails to state any cause to justify an arrest). Cf. Howard v. Firmand, 378 Ill. App.
       3d 147, 156-57 (2007) (Garcia, J., specially concurring) (based on the rulings by the circuit
       court, probable cause existed as a matter of law to support the civil filings seeking orders of
       protection, which precluded malicious prosecution claims).
¶ 31        Had a complaint been filed against the defendant based on what the officers observed and
       heard, such a “complaint charging solicitation of ‘unlawful business’ in the language of the
       ordinance is insufficient under section 111–3 because the [statutory] phrase ‘unlawful
       business’ does not describe specific conduct.” Powell, 315 Ill. App. 3d at 1143. As the city
       conceded in Powell, and as we held:
                 “[S]uch a complaint would be fatally defective. The only conduct alleged in the
                 complaint is the yelling of the word ‘blows.’ However, the complaint does not
                 explain the supposed meaning of that term. A reasonable person would not
                 necessarily know that ‘blows’ is a slang term for a controlled substance.” Id.
       It follows that in the instant case, a complaint that alleges nothing more than the conduct of
       yelling the term “dro, dro” is insufficient as a matter of law because it does not inform a
       reasonable person that “dro, dro” is a slang term for cannabis. See Powell, 315 Ill. App. 3d
       at 1143.
¶ 32        Nor would adding Officer Hefel’s understanding of the term to the complaint that “dro,
       dro” was a means of soliciting the sale of cannabis correct the deficiency. Officer Hefel
       testified he learned the definition of the term “dro, dro” from other arrestees over his three
       years’ experience as a Chicago police officer, suggesting he was unfamiliar with the term
       until then. He testified that “dro, dro” refers to a certain type of cannabis, but he did not
       identify the type. Unlike the term “blows,” which if defined in a complaint as a “common
       term” for heroin sufficiently defines the crime as we held in Powell, we are unpersuaded that
       “dro, dro” qualifies as a “common term” for cannabis such that a complaint defining the term
       would satisfy the requirement that an ordinance violation be charged with “reasonable
       certainty.” Powell, 315 Ill. App. 3d at 1143. A simple electronic search of a database of
       Illinois case law fails to disclose a single case that contains the term “dro, dro.” Nor have we
       encountered this term prior to this case.
¶ 33        In line with our holding in Powell regarding the complaint that we found fatally deficient,
       a reasonable person would not necessarily know that “dro, dro” is a slang term for cannabis.
       Id. Therefore, a complaint alleging no more than the facts elicited at the suppression hearing
       would be properly dismissed. Id. Consistent with this holding, we conclude that a man of
       reasonable caution, under the facts and circumstances of this case, would not believe that an
       offense has been committed. See Lippert, 89 Ill. 2d at 178. Nor would the facts elicited from
       Officer Hefel prompt a judge or magistrate to issue a warrant for the defendant’s arrest for


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        soliciting an unlawful business under the ordinance. See Tisler, 103 Ill. 2d at 236 (“the trial
        court making a probable-cause determination is to apply standards at least as stringent as
        those that guide a magistrate in deciding whether to issue a warrant”).1
¶ 34        Because the facts elicited from Officer Hefel could not survive a motion to dismiss under
        Powell if those facts were set forth in an ordinance-violation complaint, it follows that those
        same facts do not constitute probable cause that the defendant violated the city ordinance.
        In so holding, we do not ignore that an arrest for a purported violation of the ordinance would
        legitimize the arrest of an individual conducted solely for the purpose of performing a
        custodial search to see if the arrestee is in possession of contraband. See Terry, 392 U.S. at
        13 (“A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect
        of legitimizing the conduct which produced the evidence, while an application of the
        exclusionary rule withholds the constitutional imprimatur.”).
¶ 35        The facts known to Officer Hefel amounted to no more than reasonable suspicion under
        Terry. The circuit court erred in denying the defendant’s motion to quash arrest and suppress
        evidence because probable cause to justify the arrest was not established. “Because the State
        cannot prevail on remand without the evidence that we have held should have been
        suppressed, we also reverse [the defendant’s] conviction and sentence outright.” People v.
        Fulton, 289 Ill. App. 3d 970, 976 (1997).

¶ 36                                        CONCLUSION
¶ 37        Probable cause did not exist to arrest the defendant for allegedly violating the city
        ordinance against the solicitation of unlawful business based on nothing more than observing
        the defendant standing on the public way yelling “dro, dro.” Therefore, the trial court erred
        in denying the defendant’s motion to quash arrest and suppress evidence. Without the
        evidence that should have been suppressed, the State cannot prove the defendant’s guilt. We
        reverse the defendant’s conviction and vacate his sentence.
¶ 38        Reversed.

¶ 39        JUSTICE McBRIDE, specially concurring:
¶ 40        I agree that the decision of the circuit court should be reversed but not because of the
        Powell decision. The Powell case addressed the constitutionality of the instant ordinance and
        whether the indictment was defective. In my opinion, Powell does not support the outcome
        here.
¶ 41        The facts within the officers’ knowledge at the time defendant was placed under arrest
        can be summarized as follows. Defendant was standing on a public way in an area known
        for drug sales. The officers had made numerous drug arrests at that stop before. Defendant


        1
         Though this precise issue is not before us, it is also doubtful that a magistrate or judge would issue
a warrant to arrest an individual seen and heard yelling “marijuana, marijuana” at a known narcotics spot
because the mere yelling of words does not provide probable cause to arrest, though such action would
properly trigger an investigative stop.

                                                     -9-
       was heard to say twice in rapid succession the word “dro.” “Dro” is a slang term for
       marijuana. According to one of the officers, it is a term used to sell cannabis. It appeared to
       the officers that defendant was uttering these words, “dro, dro,” to a passing car. These are
       the basic facts upon which it is claimed that there was probable cause to arrest. While I agree
       these facts might arguably suggest a suspicion that criminal activity was afoot, specifically
       that defendant was soliciting the sale of cannabis, I do not agree that these facts amount to
       probable cause. Probable cause to arrest are those facts which lead a reasonably cautious
       person to believe that the person arrested has committed a crime.
¶ 42       Although the particular ordinance under which the officers were acting does not require
       that an unlawful transaction take place, noticeably absent in this case are any facts to suggest
       that an unlawful transaction had taken place or was about to take place. For example, when
       the officers approached they did not observe the defendant doing anything; he was just
       standing on the public way. The defendant did not go into his pockets, he did not put
       anything into his pockets, and he did not retrieve anything from his pockets. The defendant
       was not observed approaching any persons or any vehicles, nor was he observed handing any
       objects to anyone. He was not seen receiving money or any objects from anyone. When the
       officers drove their vehicles to the location where defendant was standing, defendant did not
       flee. The defendant stood there, was handcuffed, and immediately placed under arrest. What
       should have occurred in this case was a brief detention, a Terry stop, aimed at confirming or
       dispelling the officers’ suspicions that defendant was soliciting for unlawful business. The
       mere utterance of slang terms for drugs to a passing vehicle in a heavy narcotics traffic area
       without more does not amount to probable cause. Since the defendant’s arrest was without
       probable cause, I agree that the evidence obtained should be suppressed. Accordingly, I
       concur in the decision to reverse the judgment of the circuit court.

¶ 43        JUSTICE ROBERT E. GORDON, dissenting:
¶ 44        I respectfully dissent.
¶ 45        If the defendant stood in a known narcotics trafficking area and yelled “marijuana for
       sale,” I have no doubt that the majority would find probable cause for solicitation of unlawful
       business in a public way.
¶ 46        The result should not be any different because he used street slang instead of the king’s
       English.
¶ 47        I disagree with the majority on a number of points. First, although the majority was
       “unpersuaded that ‘dro, dro’ qualifies as a ‘common term’ for cannabis” (supra ¶ 32), the
       trial court was persuaded, and the majority fails to explain why this factual finding was
       against the manifest weight of the evidence. A police officer testified to this fact based on
       his knowledge and expertise, and this fact went unrebutted by any other evidence or
       testimony. Thus, I cannot agree that this factual finding was against the manifest weight of
       the evidence.
¶ 48             Second, the majority states repeatedly that since a reasonable person would not know
       that “dro” is a slang term for cannabis, “a complaint alleging no more than the facts elicited
       at the suppression hearing would be properly dismissed.” Supra ¶ 33. See also supra ¶ 33 (“a

                                                -10-
       reasonable person” would not know “that ‘dro, dro’ is a slang term for cannabis”). Again,
       this overlooks the fact that “the facts elicited at the suppression hearing” included the
       officer’s knowledge and expertise, and his unrebutted definition of the term. See also supra
       ¶ 30 (discussing the “facts elicited” at the hearing, without including the officer’s expertise).
¶ 49       Third, the majority states, almost as evidence, that it had never before encountered the
       term “dro.” Supra ¶ 32. An electronic database search revealed a number of cases in the last
       few years in which police officers and other witnesses testified that the term “dro” is used
       to denote marijuana. United States v. Foxx, 544 F.3d 943, 947 (8th Cir. 2008) (“ ‘Dro’ is
       slang for higher quality marijuana or hydroponic marijuana, according to an officer who
       testified at trial.”); State v. Thomas, 08–1171, at 3 (La. App. 5 Cir. 4/28/09); 13 So. 3d 595,
       598 (an undercover narcotics agent testified that defendant referred to the marijuana he had
       for sale as “ ‘dro’ ”); United States v. Pugh, No. 4:07CR00375–01–WRW, 2008 U.S. Dist.
       LEXIS 66016, at *2 (E.D. Ark. Aug. 18, 2008) (“Hydro-phonic marijuana (commonly known
       as ‘Dro’) was found during a search of the car.”); State v. Peterson, No. C0A04–573, 2005
       N.C. App. LEXIS 921, at *2 (N.C. App. May 3, 2005) (the term “ ‘dro’ [was] referring to a
       type of marijuana”); State v. Murray, No. C0A02–1540, 2003 N.C. App. LEXIS 1935, *2
       (N.C. App. Oct. 21, 2003) (a cooperating witness testified that he understood the term “ ‘the
       dro,’ *** to mean marijuana”).
¶ 50       Fourth, the majority appears to denigrate the officer’s expertise by noting that he did not
       appear familiar with the term “dro” until arrestees started informing him of the term over the
       last three years. Supra ¶ 32. We can take judicial notice of the fact that slang changes.
¶ 51       Fifth, the majority criticizes the officer for not testifying to the specific type of marijuana
       that “dro” refers to. Supra ¶ 32. Whatever the type, soliciting its sale was still unlawful
       business.
¶ 52       Therefore, I must dissent.




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