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People v. Jordan

OPINION FILED NOVEMBER 26, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

GARY D. JORDAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Knox County; the Hon. SCOTT I. KLUKOS, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

In this appeal by the People of the State of Illinois, hereinafter referred to as the State, the order of the Circuit Court of Knox County suppressing a confession by the defendant, Gary D. Jordan, is challenged by the State. An order suppressing the use of certain cannabis seized as evidence is challenged by defendant. At the hearing on the defendant's motion to suppress his confession, the defendant testified that he was arrested in Galesburg on February 15, 1979, on Main Street. He was placed in the squad car by Officer Duncan, the arresting officer, and told to relinquish his driver's license. He was informed that he was under arrest and was subsequently taken to the police station and interrogated. At no time was he given Miranda warnings. The total time, from when he was first stopped on the street until he was booked, encompassed about 4 to 4 1/2 hours. The defendant did not recall whether he made any statements during that time, but he did have a conversation with the arresting officer for about one-half hour in the police station.

On cross-examination, the defendant stated that he was not physically abused, beaten, threatened or bribed. The defendant testified that he felt compelled to make a statement to the arresting officer because he was a policeman. On redirect examination, the defendant indicated he was not accustomed to being interrogated by police officers and was unfamiliar with the procedure. He was "scared" and did not feel well at the time.

The next witness called was the arresting officer, Harold A. Duncan, Jr. He testified that he arrested the defendant in the early morning hours of February 15, 1979, on East Main Street in Galesburg at 2:08 a.m. When he first saw the defendant, the defendant was seated in a car, trying to back it up. Momentarily, he got out of the car and, walking around to the trunk of the car staggering, opened the trunk, took out a shovel and started shoveling the snow from underneath the car. Defendant fell down a couple of times.

The officer pulled the squad car up behind the defendant's car, got out and went to ask the defendant if he was having a problem. The defendant, while he was staggering, "kind of swaying," stated that he had "a gin and tonic trouble." The officer asked for his driver's license, and the defendant fumbled in his billfold and came up with a bond card. The officer told him that he did not need a bond card yet, but needed to see the defendant's driver's license. The defendant "fumbled around for a bit" and again handed the officer a bond card. There was a strong smell of alcohol about the defendant.

Another officer, Officer Pumphrey, arrived on the scene and concurred that the defendant was intoxicated. Officer Duncan then placed the defendant under arrest for driving while intoxicated. He was placed in the squad car and taken to the Public Safety Building in Galesburg.

Once there, he was taken to the "report room" at the station, and when the officer started to take him to a private interview room, the defendant said he had to "spit up." He was taken to a restroom where he emptied his stomach. The defendant was again seated in the report room while the officer went to obtain a breathalyzer form.

At the time, after about 1 1/2 to 2 minutes, the officer noticed a grassy substance on the floor at the feet of the defendant. When the defendant was asked where the substance came from, he said it came from his boots. When the officer told him to take off his boots, the officer noticed a bulge just over where the boots were and reached down and took what appeared to be a grassy substance in a plastic bag from the defendant's right pant leg at about boot level.

The defendant said that he had bought the grass from "a guy named John Santos." The defendant said that the person he had bought the marijuana from sold 200 pounds a week. None of these statements was made in response to questioning. The defendant simply made the statement "out of the blue." He had not been advised of his Miranda rights at that time, nor had he been in the interview room at any time up until the time he made the statements.

The officer proceeded to read the breathalyzer form to him and the defendant consented to take a breathalyzer test. At that time, the defendant went through the breathalyzer test procedure. Then, as was the officer's standard practice, just prior to the alcohol influence form being filled out, he read the defendant the Miranda warnings from his standard card. When the defendant was read the Miranda rights from the standard police department issued card, the defendant indicated he understood the "rights." He also agreed to answer the questions on the alcohol influence report form.

The defendant stated that he had been to a friend's house and had been "smoking some grass" there and also stated that he had consumed about two water glasses full of gin and tonic. These statements were not made in response to questions on the alcohol influence form, but were offered by the defendant.

On cross-examination, Officer Duncan stated that the procedure in the Galesburg Police Department for the reading of Miranda rights is that the reading of the rights is done before beginning questioning that might elicit self-incriminating statements. The officer did not ask the defendant any such questions during the whole period from his arrest until he began with the breathalyzer test. The Miranda warnings were read after the breathalyzer test, but before reading of the alcohol influence form. The only questions asked of defendant were those concerning the marijuana, and those questions were asked just prior to filling out the breath analysis form.

In the officer's estimation, the time that elapsed from the defendant's arrest to the reading of the Miranda warnings was "probably 15" minutes. The officer then testified that the defendant "threw up" prior to taking the breath test as well as prior to the finding of the marijuana. Upon being questioned about his report, which stated that the breathalyzer test had been interrupted when the defendant became sick, the officer stated that the defendant went to the bathroom twice.

The next person to testify was Officer Ralph Sargeant. He stated that he first came in contact with the defendant in the early morning hours of February 15 in the Public Safety Building in the report writing room. Officer Duncan had been in the room with him and had left the room, so ...


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