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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,
Quennel AUGUSTA, Defendant-Appellant.


Page 527

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

          James E. Chadd, Peter A. Carusona, Matthew Lemke, and Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.

          John 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.

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

Page 528



         ¶ 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

Page 529

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 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 cannabis.

         ¶ 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 can.

         ¶ 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 ...

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