                                        2019 IL App (1st) 161204
                                              No. 1-16-1204
                                        Opinion filed July 23, 2019

                                                                                    Second Division


                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            FIRST DISTRICT


                                                          )
                                                                Appeal from the Circuit Court
     THE PEOPLE OF THE STATE OF ILLINOIS,                 )
                                                                of Cook County.
                                                          )
            Plaintiff-Appellee,                           )
                                                          )
                                                                No. 14 CR 16710
     v.                                                   )
                                                          )
     ALVIN BROWN,                                         )
                                                                The Honorable
                                                          )
                                                                Raymond Myles,
            Defendant-Appellant.                          )
                                                                Judge, presiding.
                                                          )


             JUSTICE HYMAN delivered the judgment of the court, with opinion.
             Justice Pucinski concurred in the judgment and opinion.
             Justice Mason dissented, with opinion.

                                               OPINION

¶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 it.

¶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
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     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.”

¶3                                            Background

¶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’ probation.



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¶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



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       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 gas station.

¶ 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, ¶ 5.

¶ 15                                                  Trial

¶ 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.

¶ 17                                                Analysis

¶ 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,



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       every person has a right against unreasonable searches and seizures. U.S. Const., amend. IV.

       Brown maintains that the arresting officer had an unreasonable belief that Brown committed the

       offense of drinking on the public way.

¶ 19          On a motion to suppress evidence, the defendant has the burden of producing evidence

       and proving the search and seizure were unlawful, but once the defendant makes a prima facie

       showing of an illegal search and seizure, the burden then shifts to the State to produce evidence

       justifying the intrusion. People v. Martin, 2017 IL App (1st) 143255, ¶ 18 (citing People v.

       Woodrome, 2013 IL App (4th) 130142, ¶ 16).

¶ 20          In reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-part

       standard of review in Ornelas v. United States, 517 U.S. 690, 699 (1996). Under this standard, we

       give great deference to the trial court’s findings of historical fact and reverse only if against the

       manifest weight of the evidence. People v. Almond, 2015 IL 113817, ¶ 55. A reviewing court,

       however, assesses the facts in relation to the issues and draws its own conclusions when deciding

       what relief should be granted. People v. Pitman, 211 Ill. 2d 502, 512 (2004). We review de novo

       the trial court’s ultimate legal ruling as to whether suppression is warranted. People v. Holmes,

       2017 IL 120407, ¶ 9.

¶ 21          The facts of Brown’s arrest and search are not in dispute. The officers, who were on

       routine patrol, saw Brown take a sip from a beer while standing in a parking lot outside a 24-hour

       gas station. The officers then arrested Brown for drinking alcohol “on the public way” and

       searched Brown and the codefendant. The officers found a plastic bag in Brown’s pocket

       containing one pill that positively tested as a controlled substance.




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¶ 22          Did the officers have probable cause for Brown’s arrest based on a municipal ordinance?

       Brown argues the trial court improperly denied his motion to quash his arrest and suppress the

       evidence because the police officers had no reasonable basis to believe that he violated the

       Municipal Code prohibiting consumption of alcohol on a “public way.” Brown asserts he was

       standing on private property—the parking lot of a gas station. The State argues the custodial

       search that resulted in finding contraband was lawful because the officer’s mistaken belief that

       Brown broke the law was objectively reasonable.

¶ 23          The State acknowledges that the gas station parking lot, by definition, was not a “public

       way” as contemplated by the Municipal Code. The State’s brief concedes that the arresting

       officers’ belief that Brown committed a crime was mistaken (as the trial court found) but argues

       the mistake was reasonable. In oral argument as well, the State conceded the parking lot was not a

       “public way” as defined in the ordinance. Thus the State has abandoned its position regarding

       “public way” as argued in the trial court and waived this point on appeal.

¶ 24          The dissent points out that this court is not bound by the parties’ concessions (see People

       v. Nunez, 236 Ill. 2d 488, 493 (2010)). Infra ¶ 62. But the State’s position on appeal is more than

       simply a concession as the dissent represents. See People v. Reed, 2016 IL App (1st) 140498,

       ¶ 13 (rules of waiver and forfeiture apply to the State). Having waived the issue of the definition

       of “public way,” the State argues the issue not in terms of whether the gas station was a public

       way but in terms of whether the officer’s mistaken belief that it was a public way was reasonable.

       The trial court specifically noted “most citizens including the police do not clearly understand

       that gas stations are not public ways,” calling the officers’ belief that it was a public way

       reasonable, “although this is a mistake of law.” Our focus is on this mistaken belief.



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¶ 25          Citing People v. Relwani, 2019 IL 123385, the dissent believes that Brown did not meet

       his burden of proving the gas station parking lot was not a “public way.” Infra ¶ 70. The supreme

       court affirmed the trial court’s denial of the defendant’s petition to rescind the statutory summary

       suspension of his driver’s license as not against the manifest weight of the evidence. Relwani,

       2019 IL 123385, ¶ 26. The defendant failed to present a prima facie case for rescission. See id.

       (“It is certainly not clearly evident from the minimal evidence defendant presented that the trial

       court should have arrived at the opposite conclusion or that its conclusion was unreasonable,

       arbitrary, or not based on the evidence.”).

¶ 26          But the holding of Relwani does not apply here because there the defendant’s ability to

       meet his burden was contested on appeal, while in this case the State does not argue the issue of

       private property vis-à-vis the statutory definition of “public way.” Instead, the trial court

       specifically found the officers’ “mistaken belief” was reasonable, and the State only argues

       reasonableness as follows: “The trial court properly denied defendant’s motion to quash arrest

       and suppress evidence where the totality of the circumstances show[s] that defendant was

       drinking on a public way was objectively reasonable.” In light of the State’s waiver, the burden

       recognized by Relwani simply does not apply to Brown.

¶ 27          Even without the State’s waiver of this argument, we would reach the same result. We

       would apply the same analysis to conclude that the parking lot was not the “public way,” as

       contemplated in the ordinance, and further that the officers’ belief was unreasonable.

¶ 28                                      Reasonable Mistake of Law

¶ 29          Whether a stop is reasonable depends on the totality of the circumstances. See People v.

       Thomas, 198 Ill. 2d 103, 109 (2001). We view the underlying facts objectively “from the



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       perspective of a reasonable officer at the time that the situation confronted him or her.” Id. at 110.

       The trial court noted three factors as supporting a reasonable belief of the officers: (i) gas stations

       cannot hold a liquor license in Chicago, (ii) Brown was standing in the gas station parking lot,

       and (iii) police had received complaints about people drinking and people with guns at the gas

       station. But none of these factors emerges as dispositive, nor do they together prove the

       reasonableness of the officers’ belief that Brown was breaking any law.

¶ 30          The central question concerns whether the police officers’ mistaken belief regarding

       Brown’s violation of the Municipal Code was reasonable. The fourth amendment requires

       government officials to act reasonably, not perfectly, and gives those officials “ ‘fair leeway for

       enforcing the law.’ ” Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014)

       (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). But “[t]he Fourth Amendment

       tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be

       objectively reasonable.” (Emphases omitted.) Id. at ___, 135 S. Ct. at 539. The subjective

       understanding of the officer is irrelevant. Id. at ___, 135 S. Ct. at 539.

¶ 31          The State asserts Brown was outside the gas station, “where a steady flow of traffic

       entered and exited,” which could lead to a reasonable belief that Brown was drinking on a “public

       way.” The State relies on People v. Gaytan, 2015 IL 116223. There, police officers stopped a car

       with a trailer hitch, believing the Illinois Vehicle Code prohibited a trailer hitch that might

       obstruct a vehicle’s license plate. Id. ¶ 1. Gaytan followed Heien, holding that the seizure, itself,

       was reasonable because the police officer’s vehicle stop was “based on an objectively reasonable,

       though mistaken, belief that the defendant’s conduct was illegal.” Id. ¶ 52. Heien and Gaytan

       recognized that probable cause for a Terry stop may exist, despite an arresting officer’s “mistake



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       of law.” But, as the Supreme Court stated in Heien, “an officer can gain no Fourth Amendment

       advantage through a sloppy study of the laws he [or she] is duty-bound to enforce.” Heien, 574

       U.S. at ___, 135 S. Ct. at 539-40.

¶ 32          Brown’s arrest and search incident to his arrest rested on an unreasonable mistake of law.

¶ 33          The Municipal Code provided guidance to the officers through its specific definitions.

       Section 8-4-030(a)(1) of the Municipal Code makes it “unlawful for any person to drink any

       alcoholic liquor as defined by law on any public way or in or about any motor vehicle upon a

       public way in the city.” Chicago Municipal Code § 8-4-030(a)(1) (amended at Chi. City Clerk J.

       Proc. 52958 (May 8, 2013)). The “Definitions for Code provisions” in section 1-4-090(f) of the

       Municipal Code defines “public way” 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)).

¶ 34          The cardinal rule of statutory construction requires we ascertain and give effect to the

       legislature’s intent, and the best indicator of intent is the plain and ordinary meaning of the

       statutory language. People v. Hardman, 2017 IL 121453, ¶ 19. We must construe the words and

       phrases in light of other relevant provisions and not in isolation. People v. Bradford, 2016 IL

       118674, ¶ 15. We do not depart from a statute’s plain language by reading into it exceptions,

       limitations, or conditions not expressed by the legislature. Hardman, 2017 IL 121453, ¶ 31.

       Moreover, “[c]are must be taken when importing the definition of a term from one statute to

       another, since ‘the context in which a term is used obviously bears upon its intended meaning.’ ”

       Cohen v. Chicago Park District, 2017 IL 121800, ¶ 22 (quoting People ex rel. Illinois

       Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 29) (shared-use path not



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       “road” within meaning of Local Governmental and Governmental Employees Tort Immunity Act

       (745 ILCS 10/3-107 (West 2012)).

¶ 35          The Municipal Code’s definitions aid this court’s understanding of the reasonableness or

       unreasonableness of the alleged violation that was the basis for Brown’s arrest in the first place.

       In other sections of the Municipal Code, we find the City of Chicago Department of Business

       Affairs and Consumer Protection regulates use of the “public way” by issuing permits and

       licenses. See Chicago Municipal Code § 2-25-050 (amended at Chi. City Clerk J. Proc. 54734

       (June 5, 2013)) (“Powers and duties of the department”); Chicago Municipal Code § 2-25-060

       (added Nov. 19, 2008). For example, business owners must obtain a permit to “use the public way

       or public grounds or any space above or beneath any public way or public grounds.” Id. Permits

       must be obtained for structures such as signs, lights, canopies, benches, and the like. Chicago

       Municipal Code § 10-28-010 (amended at Chi. City Clerk J. Proc. 44485 (Dec. 12, 2012)). This

       section defines “public way” as having the same meaning ascribed to that term in section 1-4-

       090(f) entitled “Definitions for Code provisions” and includes “any other public place.” Id. (citing

       Chicago Municipal Code § 1-4-090(f) (amended at Chi. City Clerk J. Proc. 44485 (Dec. 12,

       2012))). Also, the “Traffic Definitions and General Provisions” section defines “Public way” as

       “any sidewalk, roadway, alley or other public thoroughfare open to the use of the public, as a

       matter of right, for purposes of travel, excepting bridle paths.” Chicago Municipal Code § 9-4-

       010 (amended at Chi. City Clerk J. Proc. 54983 (June 5, 2013)). The only nondefined term in

       section 9-4-010 is “public thoroughfare.” See id.

¶ 36          “[L]ogic and common sense” play a role in our interpretation of the law. (Internal

       quotation marks omitted.) People v. Chatman, 2016 IL App (1st) 152395, ¶ 34. The parking lot



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       cannot be categorized as a sidewalk, street, alley, or highway. The only possible justification for

       Brown’s arrest would be if “other public thoroughfare” encompasses the parking lot of a privately

       owned business.

¶ 37          The Municipal Code specifically defines “public way” and prohibits alcohol consumption

       in those locales. As the dissent in People v. Rodriguez, 276 Ill. App. 3d 33, 43 (1995) (McLaren,

       P.J., dissenting), stated: “the legislature, by using the term ‘public way,’ proscribed streets, alleys,

       roads, parkways, highways, and sidewalks as places where drug trafficking would result in stiffer

       penalties. If the legislature desired to include public property, public accommodation, or public

       amusement in the proscription in the Juvenile Court Act, it could easily have inserted these terms.

       The legislature did not do so. This court may not do so.” We do not read the phrase “public

       thoroughfare” contained in the Municipal Code as including gas station or convenience store

       parking lots.

¶ 38          In Chicago, a separate section of the Municipal Code makes the department of streets and

       sanitation responsible for “supervision of the sanitation of the public ways of the city and the

       lighting thereof except where such improvement is to be paid for wholly or in part by special

       assessment; the cleaning of public ways and the removal of garbage, refuse and waste, the

       removal of any article or thing which may encumber or obstruct any public way See Chicago

       Municipal Code § 2-100-030 (amended July 19, 2007) (chapter 2-100, titled “Department of

       Streets and Sanitation”; article I, titled “Organization and Functions”; and section 2-100-030,

       titled “Commissioner-Powers and duties”).

¶ 39          Even the snow removal ordinance would not apply to the gas station’s parking lot. See

       Chicago Municipal Code § 10-8-180 (amended Oct. 28, 2015) (“Snow and ice removal”). And



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       cutting through a gas station or strip mall parking lot to avoid a traffic signal is prohibited, as

       anyone who has a driver’s license learns. See 625 ILCS 5/11-305(b) (West 2014) (“It is unlawful

       for any person to leave the roadway and travel across private property to avoid an official traffic

       control device.”).

¶ 40          Further, we take judicial notice of the Chicago Police Department directives published on

       the Chicago Police Department Directives System website. Chi. Police Dep’t, The First

       Amendment and Police Actions (Apr. 19, 2012), http://directives.chicagopolice.org/directives/

       data/a7a57be2-1287e496-14312-87ee-09b7a8a4b7d34441.pdf?hl=true             [https://perma.cc/D3FC-

       L59G] (“General Order G02-02”); see Azzone v. North Palos Fire Protection District, 105 Ill.

       App. 3d 877, 879 (1982) (“The rules and regulations of defendant Fire District were not made

       part of the record, but we will take judicial notice of them.” (citing Sye v. Wood Dale Fire

       Protection District No. 1, 43 Ill. App. 3d 48, 50 (1976))).

¶ 41          General Order G02-02 reads, “The public way generally includes public property held

       open to the public such as city parks, public streets, and sidewalks. The public way does not

       include privately-owned property, such as the United Center, and publicly-owned property not

       open to the public, such as the working area of a police facility.” Chi. Police Dep’t, The First

       Amendment and Police Actions, supra.

¶ 42          The directives glossary has slightly different wording that is consistent with the

       ordinance’s definition’s language. “Public Way” means “Any sidewalk, roadway, alley, or public

       thoroughfare open to the use of the public as a matter of right for the purposes of travel, excepting

       [bridle] paths.” Chi. Police Dep’t, Glossary of Terminology, http://directives.chicagopolice.org/

       directives/data/ContentPackages/Core/Glossary/glossary.html?content=a7a551ac-12434b53-



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       c5c12-4ef3-0bfda1e4198789ec.html?ownapi=1 (last visited July 11, 2019) [https://perma.cc/

       LW2H-BNWW]. The definitions in the ordinance and in the police department’s own directives

       need no clarification; both are specific and unambiguous.

¶ 43          One last point: the dissent characterizes these directives as “evidentiary matters that were

       not presented to the trial court.” Infra ¶ 74. The directives glossary definition of “Public Way” is

       not a piece of evidence; rather, the directives provide context for what a police officer is expected

       to know. We are not asking police officers to “analyze cases involving analogous statutes or

       engage in statutory interpretation in executing their everyday duties.” Infra ¶ 72.

¶ 44                                            Criminal Statutes

¶ 45          We find no case law interpreting the Municipal Code’s reference to “public thoroughfare.”

       In its brief, the State resorted to interpreting the language in Illinois criminal statutes. But, rather

       than help the State’s position regarding the reasonableness of the police officers’ mistaken belief,

       the criminal cases aid us in finding the unreasonableness of officers’ belief.

¶ 46          Criminal statutes have enhanced charges depending on the situs of the offense. “Public

       way” as a legal term of art can be found in the unlawful use of weapons statute (720 ILCS 5/24-

       1(a)(4), (c)(2) (West 1994)), the aggravated battery statute (id. § 12-4(b)(8)), and the automatic

       transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-4(7)(a) (West 1994)).

       People v. Jones, 288 Ill. App. 3d 293, 297 (1997). For example, the aggravated battery

       enhancement provides a person commits aggravated battery if he or she either “ ‘[i]s, or the

       person battered is, on or about a public way, public property or public place of accommodation or

       amusement.’ ” People v. Ward, 95 Ill. App. 3d 283, 287 (1981) (quoting Ill. Rev. Stat. 1979, ch.




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       38, ¶ 12-4(b)(8)). Jones found that the phrase “on a public way” as used in the enhancement

       provision was not “mere surplusage.” Jones, 288 Ill. App. 3d at 298.

¶ 47          And courts have viewed public maintenance of a parking lot as one determinative factor.

       The court in People v. Kozak, 130 Ill. App. 2d 334, 334-36 (1970), held a grocery store parking

       lot was not a “highway” as used in statute (Ill. Rev. Stat. 1967, ch. 95½, § 1-121)—the parking lot

       was owned by a nonpublic body and was not maintained by any governmental body. But where

       the evidence demonstrated public maintenance of a lot, courts have found a public highway. See

       People v. Bailey, 243 Ill. App. 3d 871 (1993) (municipal parking lot publicly maintained and

       posted as open for use by public was “highway” for purposes of implied consent statute (Ill. Rev.

       Stat. 1991, ch. 95½, ¶ 11-501.1(a), (c))); People v. Culbertson, 258 Ill. App. 3d 294, 297 (1994)

       (Metra train station parking lot maintained by municipality was “public highway”); People v.

       Helt, 384 Ill. App. 3d 285 (2008) (publicly maintained parking lot open to use by public was

       “highway” even if privately owned).

¶ 48          As stated in Ward, 95 Ill. App. 3d at 287, “[o]bviously, our legislature was of the belief

       that a battery committed in an area open to the public, whether it be a public way, public property

       or public place of accommodation or amusement, constitutes a more serious threat to the

       community than a battery committed elsewhere.” In other words, an already illegal act—battery,

       unlawful use of a weapon, drug possession—presents a greater threat to society when done in a

       public place. Protection of the general public is the public policy basis for criminal statutes

       proscribing illegal acts. From this policy flows interpretation of the statutes that criminalize

       certain behaviors.




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¶ 49           In Ward, the Second District reached the issue in the context of the aggravated battery

       statute’s enhancement based on the situs of the alleged offense—a car in the parking lot of a

       Holiday Inn. Id. at 285. The court broadly construed the statutory language to encompass any

       battery committed in a public area, reasoning that whether the property was in fact publicly

       owned or a privately owned “public place of accommodation” was irrelevant. Id. at 287-88.

       Rather, “what is significant is that the alleged offense occurred in an area accessible to the

       public.” Id. at 288. The legislative intent expressed in the legislative committee comments was to

       encompass any area accessible to the public because a battery in a public area was a more serious

       threat to the community than a battery committed elsewhere. Id. at 287 (citing Ill. Ann. Stat., ch.

       38, ¶ 12-4(b)(8), Committee Comments-1961, at 465 (Smith-Hurd 1979)).

¶ 50           The Second District applied the automatic transfer provision in the Juvenile Court Act of

       1987 to a juvenile charged with delivery of a controlled substance occurring in a gas station

       parking lot that was within 1000 feet of a school. See Rodriguez, 276 Ill. App. 3d 33; 705 ILCS

       405/5-4(7)(a) (West 1994). The minor argued that the delivery was not on a “public way.”

       Rodriguez, 276 Ill. App. 3d at 35. Relying on Ward and other parking lot cases, the court in

       Rodriguez found the gas station parking lot was sufficiently “accessible to the public” to

       constitute a public way for purposes of the automatic transfer provision. Id. at 38-39.

¶ 51           The dissent in Rodriguez, however, pointed out that “[o]ur task is not to determine

       whether a gas station is a ‘public way, public property or public place of accommodation or

       amusement,’ as the majority does by analogizing this case to cases involving aggravated battery.”

       Id. at 42 (McLaren, P.J., dissenting) (quoting 720 ILCS 5/12-4(b)(8) (West 1994) (the aggravated

       battery statute)).



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¶ 52          And in People v. Dexter, 328 Ill. App. 3d 583, 589 (2002), the dissenting justice from

       Rodriguez questioned the majority’s ruling: “Ward does not even discuss, much less decide,

       whether a privately owned parking lot can be a ‘public way.’ ” Dexter held the State did not prove

       beyond a reasonable doubt that the defendant committed the offense while he was on a

       passageway that was controlled or maintained by the government for the general use of the public

       as a matter of right, a “public way.” Id. at 591-92.

¶ 53          Brown sustained his burden by establishing a prima facie case. He was not on the public

       way but drinking a beer while standing on the ground of a gas station parking lot, near a car

       parked next to the gas station vacuum. If Brown had been in a different location, such as the

       sidewalk, street, or alley, then the Municipal Code would have been violated. See People v.

       Ayres, 228 Ill. App. 3d 277, 278 (1992) (“undisputed that both defendants were only observed

       driving on privately owned parking lots”).

¶ 54          Simply put, drinking a can of beer on private property is not illegal in Chicago for

       individuals at least 21 years old. To illustrate, in People v. Caliendo, 84 Ill. App. 3d 987, 992

       (1980), the legality of the defendant’s conduct was not in doubt; committing a battery was

       prohibited either as a misdemeanor or as a felony, which were “two different forms of prohibited

       activity.” The same cannot be said about alcohol consumption, which is age-restricted but

       generally not illegal. One need not be a police officer to know the difference between a private

       property and public property or between a private thoroughfare and a public thoroughfare. The

       gas station parking lot in which Brown was standing does not constitute a “public way” as

       defined by the ordinance. The State’s attempt to equate the drinking prohibition with the criminal

       statutory enhancements fails.



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¶ 55                                            Fines and Fees

¶ 56          Reversal obviates the need for this court to address Brown’s argument regarding his fines

       and fees.

¶ 57          Reversed.

¶ 58          PRESIDING JUSTICE MASON, dissenting:

¶ 59          I respectfully dissent. Although I agree that the gas station parking lot where Brown was

       arrested is likely not a “public way” within the meaning of the Municipal Code, Brown did not

       sustain his burden to prove that fact in the trial court. Instead, he has asked us to take “judicial

       notice” of evidence for the first time on appeal that he should have presented during the hearing

       on his motion to suppress. The State properly objects to this tactic, and we should not condone it.

       Judicial notice is not an appropriate mechanism for relieving a defendant of the burden of proof

       on a motion to suppress, and because Brown did not sustain his burden in the trial court, we

       should affirm. Further, I disagree with the majority’s analysis of the reasonableness of the

       arresting officer’s belief that Brown was on a public way at the time of his arrest.

¶ 60          Brown was arrested as he drank beer in the parking lot of a gas station and was cited with

       a violation of the Municipal Code that prohibits alcohol consumption on a “public way” (Chicago

       Municipal Code § 8-4-030 (amended at Chi. City Clerk J. Proc. 52958 (May 8, 2013))), defined

       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)). He filed a motion to

       quash his arrest and suppress the controlled substance recovered from his person, the latter

       serving as the basis for the conviction from which he appeals. The only evidence Brown

       submitted regarding the site of his arrest was that (i) he was standing in a gas station parking lot



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       and (ii) the arresting officer believed Brown was on a “public way” because “[i]t’s an open lot,”

       there was “access to the public to come and go,” and police had responded to numerous calls,

       both from gas station employees and citizens, regarding people drinking at that location.

¶ 61          After Brown rested, the State moved for a directed finding, arguing that (i) Brown was, in

       fact, on a “public way” as that phrase has been interpreted in People v. Pugh, 162 Ill. App. 3d

       1030, 1034 (1987) (finding that parking lot adjacent to private apartment building qualified as a

       “public way” for purposes of the aggravated battery statute) and (ii) even if the court believed that

       the gas station parking lot was not a “public way,” the officer’s belief that it was should be found

       to be a reasonable mistake of law. Defense counsel argued that, because Pugh was not a

       Municipal Code violation case, its discussion of whether a parking lot constituted a “public way”

       was not controlling and that a case from the Second District—People v. Dexter, 328 Ill. App. 3d

       583, 592 (2002)—specifically determined that defendant’s conviction for possession of a

       controlled substance while on a “public way” could not be sustained because defendant was next

       to the front door or in the stairwell area of a private apartment building. Brown argued that Dexter

       was the better-reasoned decision and should be followed by the trial court. Counsel for the parties

       engaged in an extended colloquy with the trial judge about what authority the court was obligated

       to follow when the First District had ruled on a particular issue and another appellate district

       reached a different result. The court denied the State’s motion for a directed finding but

       ultimately concluded that the officer’s belief that Brown was on a public way when he was

       arrested was reasonable and, therefore, did not violate the proscription against unreasonable

       searches and seizures. Brown’s motion to suppress was denied.




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¶ 62          Here, the State concedes that the gas station parking lot was private property and chooses

       to focus instead on the reasonableness of the arresting officer’s belief that the lot was part of the

       public way. But the State’s concession—which does not bind us (see People v. Nunez, 236 Ill. 2d

       488, 493 (2010))—does not address whether Brown, in fact, sustained his burden on the motion

       to suppress.

¶ 63          It is important to discuss the burden of proof on Brown’s motion to suppress, since

       identification of the party with the burden can be dispositive in a case where the record is unclear

       or incomplete. On this issue, the supreme court’s recent decision in People v. Relwani, 2019 IL

       123385, is relevant. The petitioner in Relwani, charged with driving under the influence of

       alcohol (DUI), filed a petition to rescind the statutory summary suspension of his driver’s license,

       claiming that, at the time of his arrest, he was in his running vehicle in a privately owned

       Walgreens parking lot. Id. ¶ 4. At the hearing on the petition, Relwani was the only witness, and

       the sum total of his testimony was that he was in his car in the Walgreens parking lot. Id. ¶ 5.

¶ 64          Our supreme court found that the petitioner failed to make out a prima facie case that his

       arrest did not occur on a “public highway,” as required under the Illinois implied consent statute.

       (625 ILCS 5/11-501.1 (West 2016)). The court began its analysis by noting that what appeared to

       be an obvious conclusion, i.e., that a parking lot is not a “public highway,” was not necessarily

       the case: “While on its face the idea that a parking lot can be a ‘public highway’ may seem to be

       easily dismissed, ‘[a] parking lot that is publicly maintained and open to use by the public for

       vehicular travel will constitute a “highway,” even if the parking lot is on privately owned

       property.’ ” Relwani, 2019 IL 123385, ¶ 12 (quoting People v. Helt, 384 Ill. App. 3d 285, 288

       (2008)).



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¶ 65          In order to support rescission of the summary suspension of his license, the court noted it

       was the petitioner’s burden to disprove that the arresting officer had reasonable grounds to

       believe that he was driving or in actual physical control of an automobile on a highway while

       under the influence alcohol, drugs, or both. Id. ¶ 15. Petitioner argued that his burden to make out

       a prima facie case was satisfied by evidence supporting the inference that he was in a private

       parking lot and that the State failed to rebut this presumption by providing any evidence of public

       ownership or maintenance. Id. ¶ 16. But in order to make out a prima facie case, defendant “ ‘has

       the primary responsibility for establishing the factual and legal bases’ for the requested action.”

       Id. ¶ 17 (quoting People v. Brooks, 2017 IL 121413, ¶ 22). The court found that the inference the

       petitioner asked the court to draw from the sole fact that he was in a Walgreens parking lot was

       insufficient to make out a prima facie case. Because the relevant statute defined a “public

       highway” as one that is both “publicly maintained” and open to use by the vehicular public (625

       ILCS 5/1-126 (West 2016)), “defendant’s mere reference to ‘Walgreens,’ without more,

       establishes nothing about either the identity of the entity that maintained the lot or the public’s

       use of the lot.” Relwani, 2019 IL 123385, ¶ 23. The court concluded that the trial court’s finding

       that the petitioner had failed to establish a prima facie case was not contrary to the manifest

       weight of the evidence: “It is certainly not clearly evident from the minimal evidence defendant

       presented that the trial court should have arrived at the opposite conclusion or that its conclusion

       was unreasonable, arbitrary, or not based on the evidence.” Id. ¶ 26.

¶ 66          The court observed that the petitioner could have sustained his burden by introducing

       readily available evidence that, for example, signs on the property indicated that it was privately

       owned. Id. ¶ 29. But simply because the inference petitioner asked the court to draw was



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       reasonable, the court saw no reason why it “should reverse course now and reallocate a burden

       that has long been placed on the party bringing a summary suspension rescission action to provide

       sufficient evidence on each of the required elements needed to make a prima facie case.” Id. ¶ 28.

¶ 67          In the context of this case, Relwani provides important guidance on the nature of a

       defendant’s burden on a motion to suppress. Because Brown was arrested without a warrant, the

       State was required to articulate the basis for his arrest, which it did: he was arrested for drinking

       on a public way. It was then Brown’s burden to demonstrate that he was not on a public way at

       the time of his arrest. Brown introduced no evidence to satisfy this burden.

¶ 68          Defendants moving to quash arrest and suppress evidence have long borne both the initial

       and ultimate burden to demonstrate entitlement to that relief. Brooks, 2017 IL 121413, ¶ 22;

       People v. Walter, 374 Ill. App. 3d 763, 765 (2007). Like the petitioner in Relwani, Brown offered

       nothing more in the way of evidence other than the fact that he was in the parking lot of a gas

       station. He contended, apparently as a matter of law (because he presented no evidence on the

       issue), that the Municipal Code’s reference to drinking on a “public way” was susceptible to only

       one interpretation and that interpretation excluded privately owned property from its ambit,

       notwithstanding that the property where he was arrested was open to and used by the public 24

       hours a day. Under Relwani, that argument is insufficient to satisfy Brown’s burden to show that

       he was not on the public way at the time of his arrest.

¶ 69          As the majority concedes, no court in Illinois has addressed the meaning of the Municipal

       Code’s prohibition against drinking alcohol on a “public way.” So the majority’s extended

       discussion of principles of statutory construction may point to the proper construction of the

       Municipal Code, but it does not resolve the central issue of whether the arresting officer



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       reasonably believed that Brown was on the public way. And although it may appear, as in

       Relwani, that a private parking lot would not be a public way, we must bear in mind whose

       burden it was to establish that fact. Nothing in the Municipal Code itself specifically excludes

       from the definition of public way a business parking lot accessible to the public 24 hours a day,

       given that the Municipal Code defines “public way” as including “public thoroughfare[s].”

       Chicago Municipal Code § 1-4-090(f) (amended at Chi. City Clerk J. Proc. 44485 (Dec. 12,

       2012)). And certainly if the petitioner in Relwani could not sustain his burden to make out a

       prima facie case that a Walgreens parking lot was not a “public highway” simply by testifying

       that that was where he was arrested, Brown’s evidence that the gas station parking lot was not a

       “public way” must be deemed equally deficient to sustain his burden of proof on the motion to

       suppress.

¶ 70          The authorities relied on by Brown reveal a split of authority as to whether the State can

       sustain its burden to prove beyond a reasonable doubt that certain conduct took place on a “public

       way” for purposes of enhancing the offense with which a defendant is charged by showing that

       the defendant was in an area on private property that was accessible to the public. But we are not

       concerned here with the State’s heightened burden of proof at a criminal trial; this case concerns

       the defendant’s burden on a motion to suppress. And that context clearly makes a difference.

       Relwani, which drew an analogy between the standards of review on petitions to rescind summary

       suspensions and motions to suppress, held that a party cannot sustain the burden to demonstrate

       that his conduct occurred on private property simply by asking the court to infer that it did.

       Relwani, 2019 IL 123385, ¶¶ 18, 23. And as the record reflects, that is all Brown asked the trial

       court to do. Consequently, because Brown did not sustain his burden to present the trial court



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       with evidence that he was not on a public way at the time of his arrest, his motion to suppress was

       properly denied. Therefore, notwithstanding the State’s concession that, as a matter of statutory

       construction, the gas station parking lot was not a “public way,” because we may affirm on any

       ground appearing the record (People v. Johnson, 208 Ill. 2d 118, 132 (2003)), Brown’s failure to

       sustain his burden on the motion to suppress warrants affirmance.

¶ 71          Even if I accepted the State’s concession that Brown was not drinking on the public way

       at the time of his arrest, I would nevertheless affirm. As part of his case in the trial court, Brown

       offered the testimony of his arresting officer that he believed Brown was on the public way

       because the parking lot was open and the public had unrestricted access to it. That was all the trial

       court heard in terms of evidence regarding the officer’s belief. The remainder of Brown’s

       argument on the motion to suppress consisted of attempting to persuade the trial court to accept

       case law from another appellate district holding that a defendant charged with possession of

       narcotics was not on a “public way” when he was at the entrance or near the stairwell of a private

       building.

¶ 72          But the case law Brown relied on in the trial court and continues to rely on here does not

       compel the conclusion that the officer’s belief was unreasonable. In the trial court, Brown took

       the position that whether the arresting officer’s belief was reasonable turned on which of

       conflicting decisions from our court the trial court should follow. But although Dexter disagreed

       with Pugh, it did not overrule that decision, nor could it. See Illinois Emcasco Insurance Co. v.

       Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 786 (2009) (appellate court decision is

       not binding on other appellate districts). Ultimately, the debate about what authority is better

       reasoned or which decision a trial court in Cook County must follow is irrelevant to the issue of



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       whether decisions from our court can support a police officer’s reasonable belief. As far as I am

       aware, no case requires police officers to resolve conflicts in appellate decisions or to follow the

       decision of an intermediate appellate court outside their jurisdiction. Nor does any case require

       police officers to analyze cases involving analogous statutes or engage in statutory interpretation

       in executing their everyday duties. And finally, given the lack of any resolution of the conflict

       between Dexter and Pugh by our supreme court, it is unclear on what basis the arresting officer’s

       belief that Brown was drinking on a “public way” can be deemed unreasonable as a matter of law,

       particularly since the officer’s testimony to that effect was introduced as part of Brown’s case in

       chief on his motion to suppress.

¶ 73          This brings me to the majority’s decision to allow Brown to cite on appeal Chicago Police

       Department directives, which he claims bear on the reasonableness of the arresting officer’s

       belief. It is undisputed that this evidence was available to Brown at the time of the hearing and

       was not presented to the trial court. It is also obvious that it bears on the factual determination as

       to whether the officer’s belief that Brown was consuming alcohol on a public way was

       reasonable. I could quibble with the majority’s conclusion that these directives demonstrate that

       the arresting officer’s belief that Brown was on the public way was unreasonable—i.e., is telling

       officers that the United Center itself is not a “public way” the equivalent of telling them that the

       United Center parking lot shares the same status? But that aside, whatever their import, this

       evidence and these arguments should have been presented to the trial court during the hearing on

       Brown’s motion to suppress.

¶ 74          It is invariably the case that arguments based on facts outside the record on appeal are

       improper. People v. Woolley, 178 Ill. 2d 175, 204 (1997) (noting that it is well-settled that



                                                       - 24 -
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arguments that rely on matters outside the record may not be considered on appeal); Paluch v.

United Parcel Service, Inc., 2014 IL App (1st) 130621, ¶ 23 (same). The majority cites no case

allowing a party to sustain its burden of proof by asking a reviewing court to take judicial notice

of evidentiary matters that were not presented to the trial court. See People v. James, 2019 IL

App (1st) 170594, ¶ 15 (“The State asks us to take judicial notice of Department of Corrections’

records, but that does not change the fact that this information was not properly presented as

evidence at trial. The issue here is not what the State could have proved at trial but what the State

actually did prove at trial.” (citing People v. Jones, 2017 IL App (1st) 143718, ¶ 21)). Evidence

regarding the police department’s directives was part of Brown’s burden in the trial court that

bears directly on the arresting officer’s reasonable belief that Brown was on a public way at the

time of his arrest. Brown failed to satisfy that burden, and the majority improperly allows him to

avoid that failure by filling the evidentiary void with “judicial notice.” See supra ¶ 40. The case

the majority cites, Azzone v. North Palos Fire Protection District, 105 Ill. App. 3d 877, 879

(1982), found only that the reviewing court could take judicial notice of the type of administrative

hearing a firefighter was entitled to prior to his dismissal. Neither that case, nor any other

reported decision, allows a party to substitute judicial notice for evidence the party was required

to present to sustain that party’s burden of proof. And by relying on these directives to reverse the

trial court’s factual determination to which they relate, the majority violates the well-settled

principle that although we may affirm a ruling on a motion to suppress on any ground appearing

in the record (Johnson, 208 Ill. 2d at 132), it is improper to reverse such rulings based on new

matters or arguments presented for the first time on appeal (see People v. Estrada, 394 Ill. App.




                                               - 25 -
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       3d 611, 626 (2009) (where State appealed the grant of defendant’s motion to quash arrest and

       suppress evidence, State forfeited argument raised for the first time on appeal)).

¶ 75          I would affirm the denial of Brown’s motion to suppress, and therefore, I respectfully

       dissent.




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                                  No. 1-16-1204


Cite as:                 People v. Brown, 2019 IL App (1st) 161204


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 14-CR-
                         16710; the Hon. Raymond Myles, Judge, presiding.



Attorneys                James E. Chadd, Patricia Mysza, and Katie Anderson of State
for                      Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for                      Spellberg and Paul Castiglione, Assistant State’s Attorneys, of
Appellee:                counsel), for the People.




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