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Docket No. 87900-Agenda 21-September 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GABRIELLA L. FALBE et al., Appellees.

Opinion filed January 21, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of the court:

Defendants, Gabriella L. Falbe and Marzeal Marshall, were charged in the circuit court of Marion County with violations of section 401(c)(2) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(2) (West 1998)) (unlawful possession of cocaine with intent to deliver), said conduct allegedly occurring while defendants were on a public way within 1,000 feet of a church, a circumstance enhancing a Class 1 felony to a Class X felony (720 ILCS 570/407(b)(1) (West 1998)). Defendants filed motions challenging the constitutionality of section 407(b)(1), arguing that the statute violates due process, proportionality and equal protection clauses of the Illinois and United States Constitutions. The circuit court found the statute to be "unconstitutionally vague with regard to the given facts, to wit: the triggering of the enhanced penalty do [sic] solely to police action in selecting the locus of the offense by a traffic stop." The State appealed to the Appellate Court, Fifth District, where the cases were consolidated and subsequently transferred to this court pursuant to appellate court orders citing Supreme Court Rules 302(a) and 365 (134 Ill. 2d R. 302(a); 155 Ill. 2d R. 365). Although Rule 603 (134 Ill. 2d R. 603), rather than Rule 302(a), applies in this criminal context, the principles are the same. People v. Fuller, 187 Ill. 2d 1, 8 (1999). We now reverse the judgment of the circuit court and remand for further proceedings.

Since neither the facts nor the credibility of witnesses is contested, the constitutional issue having come before the circuit court on stipulated facts, a purely legal question is presented for which de novo review is appropriate. See Wilson v. Department of Revenue, 169 Ill. 2d 306, 310 (1996); People v. Wardlow, 183 Ill. 2d 306, 309 (1998).

According to the facts stipulated, on April 3, 1998, the Centralia police department received information that defendants, Marzeal Marshall and Gabriella Falbe, had in their possession a large quantity of cocaine at their Centralia residence. Officer Brian Atchison placed the residence under surveillance while other officers were obtaining a search warrant. However, before the officers arrived to execute the warrant, defendants left the residence in a motor vehicle. Atchison followed them and, in the vicinity of the 300 block of West Nollman, observed defendants' vehicle exceed the speed limit. He stopped the vehicle, according to the stipulation, on a public way within 1,000 feet of a church. Both defendants were subsequently arrested, and a search of Gabriella Falbe resulted in the discovery of more than 70 grams of cocaine. Defendants acknowledged that Marshall had handed the cocaine to Falbe after the traffic stop to hide and hold for him. Given the foregoing stipulated facts, and acknowledging that "legal issues," rather than "factual ones," were to be resolved, the circuit court took the matter under advisement, subsequently rendering its ruling by docket entry.

In that entry, the court recited the stipulated facts in the form of findings, and went on to hold the statute "unconstitutionally vague with regard to the given facts." The court found, "based on the facts in this case, the compelling state interest to enhance the penalty for drug delivery in specified protected zones is neither promoted or served." In so finding, the circuit court attributed dispositive significance to the traffic stop which resulted in the discovery of drugs on Falbe's person, holding that proximity to a church was "the direct result of police activity in a traffic stop without any showing that defendants started, stopped or ever intended to stop in the protected zone." (Emphasis in original.) Thus, the circuit court reasoned, the "purpose" of the statute was not served when applied to these defendants.

It is our duty to affirm a statute's constitutionality and validity if reasonably possible. People v. Lee, 167 Ill. 2d 140, 144 (1995); People v. Shephard, 152 Ill. 2d 489, 499 (1992). The statute enjoys a presumption of constitutionality (People v. Lantz, 186 Ill. 2d 243, 254 (1999)), and any doubts must be resolved in favor of the validity of the law in question (People v. Jeffries, 164 Ill. 2d 104, 111 (1995)). Since the circuit court apparently based its ruling upon a perceived due process violation, we first address principles applicable to due process analysis.

The determination of whether a statute is void for vagueness must be made in the factual context of each case. Lee v. Nationwide Cassel, L.P., 174 Ill. 2d 540, 549 (1996); People v. Bales, 108 Ill. 2d 182, 189 (1985). Due process demands that a statute must not be so vague that persons of common intelligence must necessarily guess at either its meaning or its application. People v. Warren, 173 Ill. 2d 348, 356 (1996). Where, as here, the statute does not impinge on first amendment rights, due process is satisfied if: (1) the statute's prohibitions are sufficiently definite, when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the statute provides sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions. Warren, 173 Ill. 2d at 356.

Insofar as due process principles limit the legislature's authority in the first instance to enact statutes in furtherance of the state's police power, they prohibit only arbitrary or unreasonable use of that power. People v. Brown, 98 Ill. 2d 374, 380 (1983). To constitute a legitimate exercise of the police power, a legislative enactment must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired result. Brown, 98 Ill. 2d at 380. In other words, the statute must be reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. People v. Reed, 148 Ill. 2d 1, 11 (1992). It is not our role to determine whether the legislature has chosen the best or most effective means of resolving the problems addressed by this statute. Lantz, 186 Ill. 2d at 254.

Arguing in support of the circuit court ruling, defendants reiterate that court's observation that the record is devoid of evidence defendants would have stopped in the protected zone around the church, or delivered drugs in the vicinity, had Officer Atchison not stopped them within the zone. They argue "because the subjective motivation of Atchison and not defendants' intentional conduct, determined the location and thus the nature of the offense, 'fair notice' of the unlawful conduct was not provided here." They contend that the statute allows for arbitrary enforcement of the law. Defendants conclude that the purpose of the statute, "to deter drug sales in these zones," is not served in the instant case, "because defendants' [sic] had not intended to stop in the zone or commit a crime there." We find merit in neither the defendants' due process arguments, nor in the circuit court's analysis.

First, the statute is not vague. Section 401 of the Act proscribes four separate acts, making it "unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance or controlled substance analog." 720 ILCS 570/401 (West 1998). A person who commits any one of those acts "on any public way within 1,000 feet of the real property comprising any church [or other specified locations] *** is guilty of a Class X felony." 720 ILCS 570/407(b)(1) (West 1998). The statutory scheme contemplates a two-part analysis: Has defendant committed an offense set forth in section 401? If so, did the offense take place within one of the protected zones enumerated in section 407(b)(1)? The conduct prohibited by section 401 is clearly defined. Defendants cite no case authority holding section 401 vague, nor do they even argue to that effect. Moreover, there is no mistaking that enhancement to a Class X felony will result if the conduct proscribed in section 401 is committed within one of the protected zones enumerated in section 407(b)(1). That determination is merely a matter of measurement. We find the statute's prohibitions are sufficiently definite to give fair warning as to what conduct is prohibited, and they provide adequate standards for law enforcement officers and triers of fact in the application of its provisions. See Warren, 173 Ill. 2d at 356.

Second, implicit in the ruling of the circuit court, and in defendants' position, is the conclusion that a defendant who possesses drugs with an intent to deliver, but who does not intend to consummate a drug transaction within the protected zone, is not subject to a Class X felony under section 407(b)(1), that application of the statute's enhancing provisions to those facts does not serve the purpose of the statute. In support of that conclusion, the court found, and defendants argue, that the act of the police officer in stopping defendants' vehicle within the protected zone somehow created an offense, or an enhancing circumstance, which otherwise would not have existed. We find nothing of merit in either proposition.

To read the statutes so as to require an intent to actually consummate a delivery within the protected zone would entail insertion of language into the statutes which the legislature has not seen fit to include. The legislature could have specified that a defendant who possesses a controlled substance with intent to deliver must intend to actually deliver it within the protected zone; however, the legislature apparently chose a different course. That the legislature did chose a different course is evident when we examine the remaining proscriptions of the statute-the ones defendants have conveniently ignored. In addition to delivery and possession with intent to deliver, section 401 also prohibits "manufacture" and "possession with intent to manufacture." Those offenses can also be committed within the protected zone without any intent to actually deliver within the zone. If the legislature meant only to punish those who have delivered within the zone, and those who have a present intent to conduct drug transactions there, the prohibitions against manufacture and possession with intent to manufacture would seem to be superfluous, since the mere presence of drug traffickers and quantities of drugs would not inevitably lead to deliveries within the protected zone. Clearly, it was the presence of both drug traffickers and quantities of drugs that the legislature sought to discourage in these sensitive areas. Their mere presence makes it more likely that drug deliveries will take place in the zone, whether or not deliveries are initially intended there.

We cannot say that the legislature's determination in this regard is irrational. To the contrary, it follows logically that the presence of drug traffickers and quantities of drugs in these areas is likely to result in an increase of drug transactions with all their attendant evils. Nor can we say that the decision to single out certain areas for protection is arbitrary because each of the protected zones specified in section 407 appears to correspond to a segment of our society which may well be considered particularly vulnerable and less able to protect itself from the incursions of drug trafficking. Generally speaking, schools, public housing, parks, places of worship, nursing homes, assisted-living centers, and senior citizens are frequented by those who may be least able or willing to deal with drug trafficking and the crimes associated with it. Whether by virtue of the recklessness and inexperience of youth, the deprivations and disappointments of poverty, the lowering of defenses associated with relaxation and recreation, the beliefs and ideals of worship, or the infirmity of age, each of the groups normally associated with the protected zones may be less able or willing to protect itself. There is nothing arbitrary or unreasonable in the legislature's use of the police power to protect those citizens most vulnerable and in need of protection.

Nor do we find the "locus" of the traffic stop in this case in any way relevant to the constitutional issue that confronted the circuit court. If, as alleged, defendants possessed cocaine with intent to deliver, at a time when they passed through the protected zone, then the enhanced sentencing provisions of section 407 apply to them. The officer conducting surveillance could have followed them to their destination and arrested them there. The statute would still apply to defendants so long as they concurrently possessed cocaine with intent to deliver, and at a time when they were within a protected zone. It does not matter that defendants' entry into the protected zone may have been transient. The sequencing of the statutory scheme does not require that the underlying offense commence or terminate within the zone. Nor does it matter that defendants may not have intended to make a delivery within the zone. Indeed, it would be reasonable to presume that persons possessed of both the intent to deliver and a quantity of drugs, packaged in a manner ready for retail distribution, would not be adverse to transacting business within a protected zone through which they are passing if a willing buyer appears on the scene. The likelihood of a delivery within the zone is thus increased by the mere presence of drugs and drug traffickers.

Defendants argue that the police could "deliberately arrange a drug transaction within 1000 feet of a 'safety zone', in order to effect an enhanced penalty." However, these defendants do not contend that they were lured into the zone. From the facts stipulated, it appears that they entered voluntarily without the encouragement of law officers. The defendants' conduct brought them within the express terms of the statute, not within the hypothetical posed. Thus, they do not have standing to challenge the statute as it might be applied to others in different circumstances. People v. Bailey, 167 Ill. 2d 210, 232 (1995); People v. Blackorby, 146 Ill. 2d 307, 320-21 (1992). Section 407 affords these defendants fair warning of what conduct is prohibited; it provides adequate standards for law enforcement officers and triers of fact in the application of its provisions; and it constitutes a legitimate exercise of the police power. It comports with due process standards and the circuit court erred in ruling otherwise.

Defendants, noting that it is the correctness of the circuit court's ruling, not its reasoning, which must be reviewed (People v. Nash, 173 Ill. 2d 423, 432 (1996)), raise an alternative theory in support of that ruling. They argue that section 407(b)(1) is unconstitutional because it violates the establishment clauses of both the first amendment to the United States Constitution (U.S. Const., amend. I) and the Illinois Constitution (Ill. Const. 1970, art. I,