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People v. Damian

August 14, 2007


Appeal from the Circuit Court of Effingham County. Nos. 05-CF-187 & 05-DT-155 Honorable James R. Harvey, Judge, presiding.

The opinion of the court was delivered by: Justice Stewart

Published opinion

Rule 23 order filed July 11, 2007; Motion to publish granted

The plaintiff, the People of the State of Illinois (State), appeals the order of the circuit court of Effingham County granting the motion to suppress evidence filed by the defendant, Thomas Damian. We reverse and remand.


At the hearing on the motion to suppress, the only witness offered by either party was the arresting officer, Trooper Chad Smith (Smith) of the Illinois State Police, who was called as a witness by the defendant. Using a video recording device located in his official vehicle, Smith recorded virtually all of the events surrounding the arrest and search of the defendant's vehicle. The videotape, which continually displays the time as the events unfold, was admitted into evidence as "Defendant's Exhibit 1."

On June 12, 2005, Smith responded to a call that a motorist had run off Interstate 57 into a ditch. When Smith arrived at the scene, he found no vehicle. He proceeded to a nearby rest stop, where he saw the defendant trying to unlock his vehicle with a stick. Upon questioning, he learned that the defendant had run off the interstate into the ditch and had driven his car from the ditch to the rest stop. At the rest stop, the defendant had locked his keys in his car.

At approximately 2:22 p.m., Smith began recording the events and conversations at the rest stop using the video equipment in his police vehicle. At this point, the defendant was in the squad car and was answering questions related to the incident. Smith told the defendant that if he had hit something, Smith would be required to fill out a crash report. The defendant responded that he had simply run off the road into a ditch. He stated that he had been at a music festival, that he had gotten very little sleep, and that the incident was caused by fatigue. The defendant appeared lethargic, and his speech was slurred. Smith questioned the defendant about possible drug use.

At approximately 2:36 p.m., Smith administered a horizontal-gaze-nystagmus test on the defendant, which the defendant passed. Smith did not administer any other field sobriety tests. Because of the defendant's demeanor and his admission that he had run off the road in the middle of the afternoon and had then locked his keys in his car, Smith continued to question the defendant about drug use, including the fact that the defendant was on probation for a conviction resulting from a 2004 Coles County arrest on a cannabis charge.

Before the defendant's car door was unlocked, Smith and another officer walked around the vehicle and looked in the windows. Smith saw rolling papers inside. The defendant claimed that he rolled his own cigarettes.

At about 2:43 p.m., Smith asked the other police officer to go to the scene where the defendant had run off the road to determine whether the defendant had collided with a guardrail or other property. After investigating the scene, the officer reported that the defendant had not collided with anything.

At approximately 2:49 p.m., an officer unlocked the defendant's vehicle, using a "slim jim" provided by another motorist at the rest stop. At 2:50 p.m., during a cell phone conversation, Smith stated that he was planning to arrest the defendant and that the charge would depend on whether the defendant had collided with anything. If no collision had occurred, the charge would be "DUI-drugs." At approximately 2:52 p.m., while Smith and the defendant were standing next to the open car door, Smith pointed toward the interior of the vehicle and asked the defendant whether he could "look over there." After a pause, Smith made a reference to "the whole thing." The defendant responded, "Yeah, fine with me." Smith told the defendant to step back from the vehicle. Smith did not request that the defendant sign a preprinted consent-to-search-a-vehicle form.

Smith searched the vehicle and found a bottle in a zipped backpack. The bottle contained a liquid, which looked like "dirty water," with a stem in it. Smith arrested the defendant for "DUI-drugs."

On August 24, 2005, a bill of indictment was issued charging the defendant with possession of a controlled substance, 200 grams or more of a substance containing psilocin (720 ILCS 570/402(a)(11) (West 2004) (Class 1 felony)). On September 13, 2005, the Effingham County State's Attorney filed an information charging the defendant with driving with a drug, substance, or compound in the blood or urine (625 ILCS 5/11-501(a)(6) (West 2004) (Class A misdemeanor)). ...

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