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People v. Augusta

Court of Appeals of Illinois, Third District

November 6, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
QUENNEL AUGUSTA, Defendant-Appellant.

          Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois, Circuit No. 16-CF-7 Honorable Paul L. Mangieri, Judge, Presiding.

          JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice McDade specially concurred, with opinion. Justice Carter dissented, with opinion.

          OPINION

          HOLDRIDGE JUSTICE

         ¶ 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.

         ¶ 2 I. BACKGROUND

         ¶ 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 asked:

"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 side-
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?
A. Yes.
Q. So you would have taken him, as you see me now, underneath my jaw and grabbed his throat; is that correct?
A. Yes.
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 suspected-
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?
A. Yes.
Q. You were unable to get it out of his mouth, and so Officer Tapscott then helped you; isn't that correct? A. Yes.
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? A. Yes.
Q. And reached around and reached into [defendant's] mouth to remove the items that you stated were in his mouth; is that correct?
A. Yes."

         After removing the object from the defendant's mouth, Winbigler ...


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