People v. Bailey, 2019 IL App (3d) 180396 (May). Episode 631 (Duration 15:01)

Food in your beard is not particularly indicative of anything.

Charges

The State charged defendant with two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2)), as well as other traffic offenses.

Issue

Defendant filed a motion to suppress evidence, alleging that the officer did not have probable cause to arrest him.

Facts

Truck gets stopped for speeding.

When the officer approached defendant’s vehicle, he first noticed defendant “had an orange, greasy substance in his beard,” which appeared to be some sort of food.

The officer testified that defendant’s “hands were very slow and deliberate” as he retrieved those items, but that defendant did not drop or fumble anything. He also noticed that defendant seemed “to be staring almost through me, as if he was having a hard time focusing.”

The officer asked defendant about the substance in his beard and learned that it was sauce from Buffalo Wild Wings, a restaurant at which defendant had recently eaten. Apparently, defendant had been unaware of the sauce in his beard.

Is That Weird?

The officer found it “unusual in general” that a person would have food on their face and not know about it. Interestingly, the officer testified that he did not notice anything unusual about defendant’s eyes and did not observe anything unusual about defendant’s speech.

No red eyes or thick tongue.

He did notice a “sweet odor” emanating from the vehicle, but he did not know what the odor was.

The Cans

The officer also observed a purple can in the cup holder, but could not see the label or discern what was in the can.

After asking for defendant’s license and proof of insurance, the officer attempted to distract defendant from those tasks by asking a question. He explained that he used this distraction method as a way to gauge defendant’s cognitive ability. Defendant “wasn’t able to divide his attention between what I had asked and what he was supposed to be doing.”

Calls For Back-Up

The officer then returned to his squad car and requested a second officer to the scene.

The officer began writing a ticket, “gave defendant a few minutes,” then returned to defendant’s vehicle to determine if defendant had located his insurance card.

Defendant provided an insurance card, but it was expired.

The officer testified that he then returned again to his squad car until the back up officer arrived. The scene, the two officers approached defendant’s vehicle. At this point, the back officers sees some cans in the back seat and immediately asks about the open alcohol beverage containers on the back floorboard.

Sh#t Got Serious Then

That’s when he asked defendant to turn off the truck and give the officer the keys.

Defendant complied, and the officer placed the keys on the top of the truck. The officer then attempted to open the back door to seize the cans. The door was locked, and defendant refused to unlock it.

At that point the officer uses the key fob remote control on the key chain to unlock the doors. He opens the door and, yes, there were Lime-A-Rita, Straw-Ber-Rita, and Grape-A-Rita alcoholic beverage cans that were open in the back seat.

The Missing Can & More Tests 

The officer observed that the can he had noticed earlier in the cup holder was standing upright on the floorboard.

The officer testified that he asked defendant to perform a series of tasks to determine if he was impaired by alcohol. These tasks included a counting test, an alphabet test, and a fingermovement test. Defendant failed to perform each of the tasks as instructed.

When defendant refused to step out of the vehicle to perform standardized sobriety tests, the officer placed him under arrest for DUI.

…Wait There’s More

When the officer returned to the truck, defendant now had sunglasses on and was chewing gum. 

What Did You Know And When Did You Know It?

The original officer had not previously noticed anything in the backseat. 

But he did notice the purple can he observed when he first approached defendant’s vehicle was no longer there.

However, the back-up officer did not tell him about the cans on the back floorboard. Instead, he only heard the back-up officer ask about them. When asked if he requested that defendant unlock the truck because the officer had “seen the cans,” the officer responded, “Yeah, I was aware of the cans there, yes.”

He testified that the cans were contraband and were in plain view.

Each of the cans had a “slight residue” in them, except the one that the officer had previously observed in the cup holder, which was approximately half full. But these things were only discovered after they could carefully inspect the cans.

Lime-A-Rita, Straw-Ber-Rita, and Grape-A-Rita

The back-up officer explained that he could see the cans in the back. Yet, he was only sure that one was a  Straw-Ber-Rita. He couldn’t see the other can labels.

At that point, from the outside, he could see if the cans contained any alcohol.

Trial Court Must Have A Beard

Under Arrest When He Took The Keys

The court found that a reasonable person in defendant’s position would feel that he was under arrest and not free to leave at the time the officer took the keys to his vehicle.

The court concluded:

“I am going to grant the defendant’s motion to suppress based on the fact that there was no probable cause to arrest the defendant at the time the officer took the keys from him.”

Probable Cause For A DUI Arrest

In its opening brief, the State asserts that the evidence was overwhelming that Officer the officer had probable cause to arrest defendant for DUI. The State recites the full body of evidence, including:

• The officer’s entry into defendant’s vehicle
• Observation of alcoholic beverage cans
• Discovery of alcohol in one can and residue in the others
• Defendant’s performance on the nonstandardized tasks
• Defendant’s refusal to perform standardized field sobriety tests
• Chewing gum
• Putting on sun glasses
• Unaware of the buffalo sauce on his beard

However, some of these information was only discovered after the arrest. Which begs the question…

To see more cases discussing probable cause for a DUI arrest go here.

Was There Probable Cause To Arrest Defendant For DUI?

For purposes of the fourth amendment, an individual is “seized” when an officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).

Even if the confiscation of defendant’s keys could be deemed reasonable based on the legitimate public interest in officer safety, the officer’s actions afterward are significant.

Rather than merely taking those keys to prevent defendant from speeding away, the officer used them to unlock defendant’s vehicle so that he could conduct a search. At this point, the warrantless search of the truck was justified under the law.

Illinois Plain View Doctrine

Where an item is seen in plain view, it must be “immediately apparent” that the object is contraband or evidence of a crime before the object’s presence will establish probable cause for a search. Texas v. Brown, 460 U.S. 730, 737 (1983) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971)); see also People v. Nadermann, 309 Ill. App. 3d 1016, 1020 (2000) (The so-called automobile exception, provides that a warrantless search of an automobile is reasonable where the police have probable cause to believe that the vehicle contains contraband.).

• See also Plain View Doctrine Examples & Cases
• Episode 529 – People v. Lee, 2018 IL App (3d) 160100 (August) (drugs in plain view were obviously contraband), and
• Episode 356 – People v. Petty, 2017 IL App (1st) 150641 (May) (Plain View Doctrine Requires Immediate Apparent Criminality | An Unhappy Choice Of Words)

The Open Container Statute Was Not Violated

Section 11-502 of the Illinois Vehicle Code states that

“no driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” 625 ILCS 5/11-502(a).

Here, it was not immediately apparent to either officer that defendant’s vehicle contained any contraband.

The back-up officer admitted that he could only actually read one larger can, labeled “Straw-Ber-Rita.” Further, there was no testimony provided as to whether he could determine if that can was open. He could only tell that one was open.

It is unclear if “the one” can to which the back-up was referring was the Straw-Ber-Rita, the purple can the officer had previously observed, or another of the cans.

Section 11-502(a) Requires Presence Of Alcohol

Section 11-502(a) turns on the actual presence of alcohol, not merely the container.

See also Illinois Open Container Laws

No Other Probable Cause From Other Factors

We also note that none of the officer’s observations leading up to the point he entered defendant’s vehicle contributed significantly to potential probable cause. It should be noted that the court commented that the officer had put undue weight on the sauce in defendant’s beard.

Such observations were even less relevant to the question of whether the can in defendant’s backseat actually contained any alcoholic liquor.

See Also

• Episode 563 – People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.)
• Episode 533 – People v. Thomas, 2018 IL App (4th) 170440 (August)(excessive nervousness and rode trash didn’t rise to the level of reasonable suspicion)

Holding

In sum, the totality of the officer’s observations up to that point, including the potentially empty alcoholic beverage can, did not rise to the level of probable cause allowing them to enter defendant’s vehicle without a warrant.

The judgment of the circuit court of Will County is affirmed.

See Also

Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October) (A Recap Of Recent DUI Probable Cause Cases)