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
...