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People v. Gulley12/22/1982
This is a State appeal from an order granting a motion by defendant, Gary Gulley, to suppress evidence. Defendant was charged by information with unlawful possession of a controlled substance, pentobarbital.
The facts are undisputed. On September 17, 1981, at approximately 3:17 a.m., Deputy James Wheatcroft and Special Deputy Joey DeNeal of the Saline County sheriff's department were patrolling in their squad car in the city of Harrisburg, Illinois, when they observed a vehicle traveling at a high rate of speed on the wrong side of the street on Jackson Street. The officers pursued the vehicle for a few blocks. They then observed the vehicle turn east on Towle Street, travel approximately one-half block, and stop. The officers next observed defendant exit the driver's side of the vehicle, stumble and nearly fall. Deputy Wheatcroft smelled alcohol on defendant's breath and observed that defendant's eyes appeared glassy. Defendant was then placed under arrest for driving under the influence of intoxicating liquor.
Deputy Wheatcroft advised defendant that he was going to be transported to the county jail and that he could either leave his vehicle and have it towed in or allow Special Deputy DeNeal to drive the vehicle to the county jail. Defendant indicated that he would allow Special Deputy DeNeal to drive his vehicle and handed the keys to Officer DeNeal. Deputy Wheatcroft then drove defendant to the Saline County jail in the police squad car, and Special Deputy DeNeal drove defendant's vehicle there.
At the county jail, Deputy Wheatcroft proceeded to book defendant, advised him of his rights, and requested that he submit to a breathalyzer test. After calling an attorney, defendant agreed to take the breathalyzer test. At no time subsequent to his arrest was defendant allowed access to his vehicle.
While Special Deputy DeNeal was getting out of defendant's vehicle after driving it to the county jail, he kicked something on the floorboard. He related that he picked up the object, which was an opaque black plastic cannister. Officer DeNeal shook the bottle and heard a rattling noise. Officer DeNeal said he opened the container out of "curiosity" and because he, in his capacity as dispatcher for the sheriff's office, "got some calls from a subject advising * * * me that [defendant] and another subject * * * were selling drugs." Special Deputy DeNeal discovered that the bottle contained pills which subsequently were identified as pentobarbital, a barbiturate.
Special Deputy DeNeal, after finding that the container on the floor of defendant's vehicle contained pills, replaced the lid on the container and put it back where he had found it. He then went into the county jail and upon his first opportunity, advised Deputy Wheatcroft of what he had found. By that time, Deputy Wheatcroft had administered a breathalyzer test to defendant, which showed that defendant had .08% by weight of alcohol in his blood. Deputy Wheatcroft and Special Deputy DeNeal then left the county jail building, went to defendant's automobile, and retrieved the bottle containing the pills.
The trial court's order stated, inter alia, that: (1) at the time of the search by Special Deputy DeNeal, there was no probable cause to justify a warrantless search of defendant's vehicle; (2) the search was not justified under the automobile exception to the warrant requirement "for the reason that at the time of the search the Defendant did not have access to the vehicle, did not even have the keys to the vehicle, and due to his arrest for driving while under the influence of intoxicating liquor would not have been allowed access to the vehicle that evening"; and (3) th
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