D'Oh! Attorney says police illegally searched phone of Naperville's alleged 'Simpsons' graffiti artist

Attorneys for the Naperville man accused of littering downtown Naperville with “Simpsons”-inspired graffiti in the summer of 2013 say evidence in the case was collected illegally and his subsequent statements to police should be thrown out.

Joseph D'Auben, 35, of the 1700 block of Fairoak Road, is charged with criminal defacement of property for his alleged graffiti spree.

During a Wednesday hearing to suppress D'Auben's statements from being allowed at trial, defense attorney Dominick Dolci said D'Auben's cellphone was illegally searched by a College of DuPage police officer during D'Auben's March 4, 2014, arrest for graffiti at the college.

D'Auben testified Wednesday that he was detained for “six or seven hours” and was denied his right to speak to an attorney three times before the officer brought him his phone and showed him images from D'Auben's Instagram social media account, registered to “El Barto,” which depicted the Naperville graffiti.

“He told me I was screwed (because of the photos),” said D'Auben. “He told me if I talked and helped make their lives easier, (the police) would make my life easier.”

So when Naperville Sgt. Tim Black arrived at COD's police department about 5:30 that evening, D'Auben talked to him about the graffiti. But prosecutors and Dolci agree he never consented for officers to search his phone.

Black said he wanted to talk to D'Auben because COD police believed he was a suspect in a string of graffiti “tagging” in Naperville's downtown between June and July 2013 that included portions of the cartoon show's characters in addition to the phrases “El Barto” and “Skinner Stinks.”

Dolci said his client “crumbled under the pressure” of being presented with alleged evidence on his phone. But, he argued, police had no right to look at his phone without a warrant.

Dolci said smartphones are similar to small personal computers that often contain private information.

“The expectation of privacy on one's personal computer is great,” Dolci said. “If not for the illegal search my client would have persisted in his right to speak to his attorney that he had asked for twice.”

Assistant State's Attorney Chris Stanton argued that police eventually would have discovered the evidence on the phone during the course of their investigation and, because of that, called the COD officer's search of the phone a “harmless mistake.”

To which Dolci replied “If you're going to err, you want to err on the side of the Constitution.”

Judge Bruce Kelsey, who will rule on Dolci's motions to suppress D'Auben's statements on Oct. 25, said he is “not a fan of Bart Simpson” but said “he's a cute little guy.”