People v. Damian

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 5th District Appellate » 2007 » People v. Damian

People v. Damian

State: Illinois

Court: 5th District Appellate

Docket No: 5-06-0026 Rel

Case Date: 08/14/2007

Preview:Rule 23 order filed July 11, 2007; Motion to publish granted August 14, 2007.

NO. 5-06-0026 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT _________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Effingham County. ) v. ) Nos. 05-CF-187 & 05-DT-155 ) THOMAS DAMIAN, ) Honorable ) James R. Harvey, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE STEWART delivered the opinion of the court: The plaintiff, the People of the State of Illinois (State), appeals the order of the circuit court of Effingham County granting the motion to suppress evidence filed by the defendant, Thomas Damian. W e reverse and remand. BACKGROUND At the hearing on the motion to suppress, the only witness offered by either party was the arresting officer, Trooper Chad Smith (Smith) of the Illinois State Police, who was called as a witness by the defendant. Using a video recording device located in his official vehicle, Smith recorded virtually all of the events surrounding the arrest and search of the defendant's vehicle. The videotape, which continually displays the time as the events unfold, was admitted into evidence as "Defendant's Exhibit 1." On June 12, 2005, Smith responded to a call that a motorist had run off Interstate 57 into a ditch. When Smith arrived at the scene, he found no vehicle. He proceeded to a nearby rest stop, where he saw the defendant trying to unlock his vehicle with a stick. Upon questioning, he learned that the defendant had run off the interstate into the ditch and had

1

driven his car from the ditch to the rest stop. At the rest stop, the defendant had locked his keys in his car. At approximately 2:22 p.m., Smith began recording the events and conversations at the rest stop using the video equipment in his police vehicle. At this point, the defendant was in the squad car and was answering questions related to the incident. Smith told the defendant that if he had hit something, Smith would be required to fill out a crash report. The defendant responded that he had simply run off the road into a ditch. He stated that he had been at a music festival, that he had gotten very little sleep, and that the incident was caused by fatigue. The defendant appeared lethargic, and his speech was slurred. Smith questioned the defendant about possible drug use. At approximately 2:36 p.m., Smith administered a horizontal-gaze-nystagmus test on the defendant, which the defendant passed. Smith did not administer any other field sobriety tests. Because of the defendant's demeanor and his admission that he had run off the road in the middle of the afternoon and had then locked his keys in his car, Smith continued to question the defendant about drug use, including the fact that the defendant was on probation for a conviction resulting from a 2004 Coles County arrest on a cannabis charge. Before the defendant's car door was unlocked, Smith and another officer walked around the vehicle and looked in the windows. Smith saw rolling papers inside. The defendant claimed that he rolled his own cigarettes. At about 2:43 p.m., Smith asked the other police officer to go to the scene where the defendant had run off the road to determine whether the defendant had collided with a guardrail or other property. After investigating the scene, the officer reported that the defendant had not collided with anything. At approximately 2:49 p.m., an officer unlocked the defendant's vehicle, using a "slim jim" provided by another motorist at the rest stop. At 2:50 p.m., during a cell phone

2

conversation, Smith stated that he was planning to arrest the defendant and that the charge would depend on whether the defendant had collided with anything. If no collision had occurred, the charge would be "DUI-drugs." At approximately 2:52 p.m., while Smith and the defendant were standing next to the open car door, Smith pointed toward the interior of the vehicle and asked the defendant whether he could "look over there." After a pause, Smith made a reference to "the whole thing." The defendant responded, "Yeah, fine with me." Smith told the defendant to step back from the vehicle. Smith did not request that the defendant sign a preprinted consent-to-search-a-vehicle form. Smith searched the vehicle and found a bottle in a zipped backpack. The bottle contained a liquid, which looked like "dirty water," with a stem in it. Smith arrested the defendant for "DUI-drugs." On August 24, 2005, a bill of indictment was issued charging the defendant with possession of a controlled substance, 200 grams or more of a substance containing psilocin (720 ILCS 570/402(a)(11) (West 2004) (Class 1 felony)). On September 13, 2005, the Effingham County State's Attorney filed an information charging the defendant with driving with a drug, substance, or compound in the blood or urine (625 ILCS 5/11-501(a)(6) (West 2004) (Class A misdemeanor)). The information was amended on January 12, 2006, to specify that the drug found in the defendant's system was cocaine. On October 20, 2005, the defendant filed a motion to suppress the evidence, arguing that all of the evidence seized on June 12, 2005, was pursuant to a warrantless detention and arrest and a warrantless, nonconsensual vehicle search. The circuit court held a hearing on the motion on December 7, 2005. At the conclusion of the hearing, the court took the motion under advisement to watch the videotape marked as "Defendant's Exhibit 1." On January 10, 2006, after reviewing the videotape, the court heard the arguments of counsel and again took the matter under advisement.

3

On January 12, 2006, the circuit court granted the motion to suppress. The circuit court found that the search did not "fit into any permissible category" and that Smith did not have probable cause to search the vehicle. Although the court acknowledged that it had observed the defendant's "lethargy and 'spaced out' demeanor" on the video, it found that one explanation was "driving under the influence of something," while another was having spent the weekend at a music festival and drinking too much while sleeping too little. The court found as follows: "While there may have been (and I believe there was) reason to question his ability to drive safely, and possibly, the 'driveability' of his car, there was not probable cause to search the vehicle." The court found the consent to search invalid. The State filed a certificate of significant impairment and a timely notice of appeal. ANALYSIS A motion to suppress generally presents mixed questions of law and fact. People v. Cox , 202 Ill. 2d 462, 465-66 (2002). Findings of historical fact made by the trial court are accorded great deference and will be upheld on review unless those findings are against the manifest weight of the evidence. People v. Lee, 214 Ill. 2d 476, 483 (2005). The reviewing court remains free to undertake its own analysis of the facts in relation to the issues presented and may reach its own conclusions when deciding what relief should be granted. People v. Jones, 215 Ill. 2d 261, 268 (2005). Accordingly, we review de novo the ultimate question of whether a suppression of evidence is warranted. Jones, 215 Ill. 2d at 268. The State argues that Smith had probable cause to arrest the defendant for driving under the influence of drugs and that, under New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), once the officer had probable cause to arrest the defendant, he had the lawful authority to search the passenger compartment of the defendant's car and any containers found therein. We agree. The Illinois Supreme Court has observed that there are three tiers of police-citizen

4

encounters that, theoretically, do not constitute an unreasonable seizure. People v. Gherna, 203 Ill. 2d 165, 176 (2003). The first tier is an arrest supported by probable cause. Gherna , 203 Ill. 2d at 176. The second tier involves a brief investigative seizure conducted under the standards set forth by the United States Supreme Court in Terry v. Ohio , 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Gherna, 203 Ill. 2d at 177. The final tier involves consensual police-citizen encounters. Gherna , 203 Ill. 2d at 177. Smith's original encounter with the defendant was in a community-caretaking role, which is distinct from a consensual encounter and is invoked to validate searches and seizures. People v. Luedemann , 222 Ill. 2d 530, 548 (2006). Smith responded to a call about a vehicle off the road, located the vehicle and the driver, and remained at the rest stop to assist the defendant because he was locked out of his car. When a law enforcement officer initiates an encounter to check on an individual's well-being without the initial thought of criminal activity, the function is community caretaking. People v. Robinson , 368 Ill. App. 3d 963, 972 (2006). The officer can, in this role, question an individual if the purpose is totally divorced from the detection, investigation, or acquisition of evidence. Robinson, 368 Ill. App. 3d at 972. While Smith was engaged in his community-caretaking role, he made certain observations. He noticed that the defendant was lethargic, that his balance was poor at one point, and that his speech was slow and slurred. This, combined with the defendant's action in running off the road into a ditch and locking his keys in his car, gave Smith probable cause to arrest the defendant. The State alleges seven reasons that, taken together, made it more probable than not that the defendant was driving under the influence of drugs: (1) he was on probation for a drug offense, (2) he had run his car off the interstate into a ditch during the middle of the afternoon, (3) he had locked his keys inside his car, (4) his speech was slow and slurred and sometimes his sentences trailed off, (5) he had failed to immediately answer simple questions

5

and once nearly fell over, (6) he was returning from a rock festival, where drug usage is common, and (7) the officers were able to see cigarette rolling papers inside his car. The United States and Illinois Constitutions protect individuals from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I,

Download People v. Damian.pdf