'El Barto's' admission to police in Naperville graffiti spree ruled inadmissable

Joseph D'Auben, 35, of Naperville, is charged with criminal defacement of property, accused of painting "Simpsons" characters and phrases throughout downtown Naperville.

A DuPage County judge ruled Tuesday that evidence in the case of a Naperville man accused of littering downtown Naperville with "Simpsons"-inspired graffiti was collected illegally and his subsequent statements to police should be thrown out.

According to court documents, Judge Bruce Kelsey suppressed statements given by Joseph D'Auben implicating himself after his March 4, 2014, arrest at the College of DuPage in Glen Ellyn.

"The court finds that the statements obtained by the Naperville police officers were obtained due to a warrantless search of (D'Auben's) cellphone by the College of DuPage Police Department," the court order states. "And without the information, no probable cause existed for the search or the statement. Therefore the defendant's motion to suppress evidence is hereby granted."

Defense attorney Dominick Dolci said he believes the ruling will be the death knell for the state's case.

"I believe the state will dismiss the case," Dolci said. "All of the evidence they garnered and statements they had were all due to the improper search of my client's phone. That's the law. That was the right ruling."

D'Auben, 35, of the 1700 block of Fairoak Road, is charged with criminal defacement of property in connection with a graffiti spree in the summer of 2013.

College of DuPage police arrested D'Auben in connection with a graffiti "tagging" incident at the Glen Ellyn campus and found photos they said linked him to the Naperville graffiti during the illegal search of his phone and Instagram account.

D'Auben testified at the beginning of the hearing last month 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)," D'Auben testified. "He told me if I talked and helped make their lives easier, (the police) would make my life easier."

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

Naperville Sgt. Tim 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."

Assistant State's Attorney Chris Stanton argued 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."

The DuPage County state's attorney's office declined to comment on Tuesday's ruling.

D'Auben's next court date is scheduled for Nov. 29.