from the Circuit Court of the 9th Judicial Circuit, Knox
County, Illinois, Circuit No. 16-CF-7 Honorable Paul L.
Mangieri, Judge, Presiding.
E. Chadd, Peter A. Carusona, Matthew Lemke, and Mark D.
Fisher, of State Appellate Defender's Office, of Ottawa,
T. Pepmeyer, State's Attorney, of Galesburg ( Patrick
Delfino, Thomas D. Arado, and Chelsea E. Kasten, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
HOLDRIDGE delivered the judgment of the court, with opinion.
Justice McDade specially concurred, with opinion. Justice
Carter dissented, with opinion.
1 The defendant, Quennel Augusta, appeals from his conviction
for unlawful possession with intent to deliver a controlled
substance. The defendant argues the circuit court of Knox
County erred in denying his motion to suppress evidence
because the arresting officers violated subsection 7-5.5(b)
of the Criminal Code of 2012 (Code) (720 ILCS 5/7-5.5(b)
(West 2016)) and the fourth amendment of the United States
Constitution when they held him by the throat and forcibly
removed suspected contraband from his mouth.
3 The State charged the defendant with one count each of
unlawful possession with intent to deliver a controlled
substance (720 ILCS 570/401(c)(2) (West 2016)), unlawful
possession of a controlled substance ( id. §
402(c)), obstructing justice (720 ILCS 5/31-4(a)(3) (West
2016)), and unlawful possession of cannabis (720 ILCS
550/4(b) (West 2016)).
4 Before trial, the defendant filed a motion to suppress
evidence. At the hearing on the motion, defense counsel
called Galesburg police officer Kyle Winbigler to testify. On
January 3, 2016, shortly after midnight, Winbigler noticed
the defendant's vehicle. Winbigler followed the defendant
because he "wanted to get a stop because [he] thought
[defendant] had narcotics." Eventually, Winbigler
stopped the defendant for failing to use his turn signal.
Winbigler's dash camera recorded the stop. It did not,
however, record the traffic violation that led to the stop.
5 As Winbigler approached the driver's side window of the
defendant's vehicle, he noticed that the defendant's
cheek was "sticking out" as if he were chewing
tobacco. Winbigler saw a piece of plastic in the
defendant's mouth and asked the defendant to open his
mouth. The defendant said that he did not have anything in
his mouth. Winbigler directed the defendant to remove the
plastic from his mouth, and when the defendant did not
comply, Winbigler "grabbed" the defendant
"below the jaw" to remove the plastic. Defense
counsel sought to clarify Winbigler's description and
"Q. Okay. Below my jaw is my throat.
When you say that below the jaw, did you take your hand,
open hand, and did you bring that under his jaw around
[defendant's] throat with your thumb on one
A. Basically, yes.
Q.— with your thumb on one side and your other
finger or fingers on the other side; is that correct?
A. Basically, yes.
Q. Are you right-handed?
Q. So you would have taken him, as you see me now,
underneath my jaw and grabbed his throat; is that correct?
Q. And at that point in time, what— you were
grabbing his throat so that he would open his mouth so that
you could inject your hand or yourself into his mouth to
attempt to remove something; is that correct?
A. I was trying to stop him from swallowing the
Q. You reached in so you could get something out of his
mouth; is that correct?
A. Not necessarily at that point. I wanted the item that
was in his mouth out.
Q. So, in other words, you grabbed [defendant] by the
throat because you believed something was in his mouth
and you wanted it out of his mouth; is that correct?
Q. You were unable to get it out of his mouth, and so
Officer Tapscott then helped you; isn't that correct?
Q. And I'm not certain in reading through the report,
but it would appear from the report that Officer Tapscott
got into the back of the vehicle?
Q. And reached around and reached into [defendant's]
mouth to remove the items that you stated were in his
mouth; is that correct?
After removing the object from the defendant's mouth,
Winbigler placed the defendant under arrest.
6 On direct examination by the State, Winbigler testified
that when he approached the defendant's vehicle, he
smelled an odor of cannabis, and saw an open bottle of beer
and a plastic cup that appeared to contain an alcoholic
beverage. Winbigler thought that the defendant was concealing
crack cocaine in his mouth.
7 Officer Jared Tapscott testified that on January 3, 2016,
Winbigler advised him that the defendant, who was suspected
to be selling narcotics, was driving through Galesburg.
Tapscott followed the defendant's vehicle until defendant
turned. Thereafter, Winbigler initiated a traffic stop, and
radioed for assistance. Tapscott parked his patrol vehicle in
front of the defendant's vehicle and stood near the rear
of the vehicle while Winbigler spoke to the defendant.
Tapscott shined his flashlight at the defendant and observed
a clear plastic bag in the defendant's mouth. As
Winbigler attempted to remove the bag from the
defendant's mouth, Tapscott entered the rear driver's
side seat to assist Winbigler. Tapscott placed his hand
"around [defendant's] upper throat to prevent him
from swallowing and tilted his back— his head
back." Winbigler opened the driver's side door to
"more easily assist with preventing the subject from
swallowing." Tapscott then reached into the
defendant's mouth and removed a clear plastic bag that
contained off-white colored chunks of suspected crack
cocaine. The removal process took less than one minute, and
at the end, Winbigler placed the defendant under arrest.
8 Following the defendant's arrest, Winbigler and
Tapscott conducted a search of the defendant's vehicle.
Tapscott found a small plastic bag that he suspected to
contain crack cocaine sitting on the driver's side
floorboard. Tapscott also discovered an open bottle of beer,
and a can of Sprite that contained a hidden compartment.
Tapscott found a plastic bag inside the hidden compartment.
The bag contained approximately four grams of suspected
9 During the State's direct examination, Tapscott
explained that he held the defendant's jaw area or throat
to prevent the defendant from choking on the plastic bag.
Tapscott also recalled that he smelled an odor of cannabis
while he was in the defendant's vehicle. Tapscott also
found suspected crack cocaine concealed inside the Sprite
10 Renee Devers testified that on the night of the
defendant's arrest, the defendant drove her home from a
local bar where she was drinking beer. While en route, the
defendant used his turn signal before each turn. Devers
noticed flashing red and blue lights, and the defendant
pulled his vehicle to the side of the road. At the time,
Devers had an open bottle of beer. Devers placed ...