Appeal from the Circuit of the 10th Judicial Circuit, Tazewell County, Illinois, No. 09--CF--422, Honorable Richard E. Grawey, Judge Presiding.
The opinion of the court was delivered by: Justice Wright
JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices O'Brien and Schmidt concurred in the judgment and opinion.
On August 27, 2009, a Tazewell County grand jury issued a bill of indictment charging defendant with the offense of unlawful possession of a controlled substance. On November 5, 2009, the trial court granted defendant's motion to suppress statements. On November 18, 2009, the State filed a certificate of impairment. We reverse.
A Tazewell County grand jury issued a bill of indictment which alleged that defendant committed the offense of unlawful possession of a controlled substance by possessing a substance containing diazepam, a controlled substance, on July 4, 2009, in violation of section 402(c) of the Illinois Controlled Substances Act (720 ILCS 570/402(c) (West 2008)). Defendant filed a motion to suppress which sought to exclude all confessions, statements, and admissions made by defendant prior to, at the time of, or subsequent to his arrest in this case.
In the motion, defendant claimed that he was not advised of his right to remain silent, right to consult an attorney, right to have an attorney present during questioning, or that anything he said could be used against him at any time. Further, the motion claimed that defendant did not waive his rights and that any statements, confessions or admissions resulted from a violation of his constitutional rights.
On November 5, 2009, the trial court conducted a hearing on defendant's motion to suppress statements. The State called David Horn, an East Peoria police officer, who testified that on July 4, 2009, he conducted a traffic stop on a motor vehicle after observing the vehicle had a license plate that was obstructed from view by a trailer hitch. Horn said that the vehicle contained three persons, including defendant.
Horn told the court that when he approached the vehicle, he asked the driver, Leroy Gibbs, for his license and proof of insurance. He also asked defendant and the other passenger for identification. Horn indicated that he received these documents. When asked by defense counsel what Horn did with defendant's driver's license, Horn replied, "I can't recall." When asked if he gave the driver's license back to defendant, Horn stated, "I generally give them back, yes, but I can't say a hundred percent." Then, Horn testified that he was unsure whether defendant provided him with a driver's license or just verbally provided his name and date of birth. Horn said that he checked for warrants on the subjects in the vehicle.
After gathering this information, he returned to the vehicle and gave the driver a verbal warning. When asked what he said to the driver, Horn testified, "I can't tell you my exact words but I can tell you, you know, basically your trailer hitch is blocking the view of your plate. You need to get that corrected. I'm going to give you a verbal warning for that." The officer then immediately asked "if they had a moment, you know, to, if I could talk to them."
According to Horn, the driver told him "yes." Horn asked Gibbs if there was anything illegal in the vehicle, and Gibbs told him "no." The officer asked for and received the driver's consent to search the vehicle. Before searching the vehicle, he "got each person out" and "asked them for consent to search their person." He took the driver to the rear of the vehicle and searched his person. Horn said that he then asked defendant for consent to search his person. After defendant consented, Horn had defendant place his hands behind his back with his fingers interlocked and grabbed defendant's thumbs while he searched defendant. Horn explained that he does this for his safety because the person cannot move his hands or arms. After finding nothing illegal on defendant's person, he asked defendant to step to the rear of the subject's motor vehicle and the front of his squad car with the other officer, Officer Agee, while he searched the second passenger, VanDyke. After finding no contraband on any of the individuals, Horn testified that he "asked them if they'd mind standing with the other officer who was in front of my squad car."
Horn testified that he asked the individuals to stand by the other officer based on safety considerations because they were on the side of the road. According to Horn, he had not placed anyone under arrest at this time. He searched the car while the individuals stood with the other officer. Further, he had not handcuffed any of the subjects and denied showing any force or indication to the subjects that they were going to be placed under arrest.
When asked if the subjects were free to leave, Horn said that if "they had asked to leave, they could [have]" and that he "had no reason to detain them at that point." However, Horn also testified that if one of the subjects had run or started ...