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People v. Flournoy

Court of Appeals of Illinois, First District, Fourth Division

November 3, 2016

LUCIUS FLOURNOY, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 13 CR 11155 Honorable Michael B. McHale, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Burke concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, defendant Lucius Flournoy was convicted of possession of a controlled substance with intent to deliver and sentenced to nine years in prison. On appeal, defendant contends that the trial court erred in denying his pretrial motion to disclose the surveillance location from which an officer observed him participate in drug transactions or, in the alternative, that the "surveillance location privilege" should be rejected as a matter of law because it offends the fundamental right to confrontation. Defendant further contends that the mittimus should be corrected to reflect the actual name of the offense of which he was convicted.

         ¶ 2 For the reasons that follow, we find that the trial court abused its discretion in applying the surveillance location privilege in this case. Accordingly, we reverse and remand for a new trial.

         ¶ 3 Defendant's conviction arose from the events of May 17, 2013. Following his arrest, defendant was charged by information with one count of possession of a controlled substance with intent to deliver and one count of possession of a controlled substance. Prior to trial, the State indicated in its answer to defendant's motion for discovery that no electronic surveillance of defendant "or his premises" existed. Defendant thereafter filed a motion to compel disclosure of surveillance locations. In the motion, defendant asserted that because the State's case against him would rest on the ability of the police officers involved to observe alleged narcotics transactions, disclosure of the surveillance location was required in order for him to investigate the officers' ability to observe and to effectively exercise his constitutional right to confrontation. The State did not file a written response to the motion.

         ¶ 4 When the motion was called, defense counsel stated that it was her understanding that the State would be "claiming privilege." The Assistant State's Attorney agreed, but provided no further explanation or a written motion on the matter. The trial court proceeded to hold an in camera hearing with an enforcement officer, Chicago police officer Michael Basile, off the record. Following that hearing, the trial court announced that, based on its review of the arrest report and its conversation with the officer, it found that the State had made a preliminary showing that disclosure of the surveillance location would harm the public interest and should remain privileged. The following exchange ensued:

"[DEFENSE COUNSEL]: Well, Judge, typically I understand that an exact location wouldn't be given, but a general area of where he was in terms of the number of the feet he was away and his, I guess if it was north, south, east or west. I understand that an address can't be given but typically-
THE COURT: In some cases it can, but I don't think it's appropriate in this instance.
[DEFENSE COUNSEL]: Right. I understand, but typically, just a general direction and the number of feet away. Typically other courts have said whether it was ground level or above.
THE COURT: You would be able to cross as to the distance whether any possible obstructions, any visual aids, but I'm not going to disclose-for me to disclose further, given the location and the fact that this is a vacant lot, I'm not going to disclose anything further than what you're entitled to on cross. That's my ruling. What's our next step?
[DEFENSE COUNSEL]: Was a surveillance location in the vacant lot?
THE COURT: No the transaction, according to the arrest reports, was done in a vacant lot." No transcript of the in camera hearing appears in the record.

         ¶ 5 At trial, Chicago police officer Brian Doherty testified that on the day of the offense, he was working as the surveillance officer with a team that was responding to complaints of narcotics sales in the area of 13th Street and Karlov Avenue. Just before noon, Officer Doherty positioned himself and began his surveillance. A man, identified in court as defendant, appeared and started walking up and down the street. Shortly thereafter, an unidentified man on a bicycle approached defendant and engaged him in a short conversation. Defendant and the man moved to a vacant lot at approximately 1315 South Karlov Avenue. While the men were in the vacant lot, Officer Doherty witnessed a hand-to-hand transaction. Specifically, he saw the unidentified man give defendant an unknown amount of paper currency in exchange for a small white item that defendant retrieved from the rear waistband of his pants. Defendant then returned to the sidewalk and resumed walking about. Officer Doherty testified that, during the transaction in the vacant lot, he was about 20 feet from defendant, it was daylight, nothing obstructed his view, and he had a clear line of sight.

         ¶ 6 Officer Doherty testified that several minutes after the first transaction, a white woman and a black woman approached defendant almost simultaneously from the south, one from the west side of the street and the other from the east. Defendant and the two women moved about five feet off the sidewalk into the vacant lot. There, defendant removed small white items from his rear waistband and gave them to the women in exchange for an unknown amount of paper currency. Again, Officer Doherty testified that during the transactions, he was about 20 feet from defendant.

         ¶ 7 Following the exchanges with the women, defendant began to walk through the vacant lot toward an alley. Officer Doherty called for enforcement officers, whom he saw approach from the north and detain defendant in the alley. Officer Doherty had not "broken surveillance" at that point, and was in constant radio contact with the enforcement officers. He learned from one of the enforcement officers, Officer Basile, that they had recovered a plastic bag containing suspect heroin from defendant's hand.

         ¶ 8 At the police station, Officer Doherty observed while Officer Basile performed a custodial search of defendant. Officer Basile asked defendant what the "plastic item" in his rear waistband was, at which time defendant reached into his boxer shorts, pulled out a plastic bag, and threw it to the ground. According to Officer Doherty, Officer Basile recovered the bag and found that it contained eight smaller ziplock bags of suspect heroin.

         ¶ 9 On cross-examination, Officer Doherty confirmed that his surveillance location was within 20 feet of the vacant lot, to the north, and stated that he was in an elevated position, "approximately" two stories from the ground. When defense counsel asked Officer Doherty whether he was in the open air or "in something, " the trial court sustained the State's objection. Officer Doherty stated that while defendant walked around on the sidewalk, he was able to view defendant from the front, rear, left, and right; that he did not use any visual aids; and that nothing blocked his view. He identified photographs of the vacant lot and agreed that they fairly and accurately depicted the lot as he viewed it on the day of the offense, except for the presence of snow and the complete absence of leaves on the trees. With regard to leaves, Officer Doherty agreed that there were "some buds" on the trees on the day he observed defendant, but asserted that to the best of his recollection, leaves had not "fully bloomed" yet. Officer Doherty specified that when defendant and the unidentified man moved into the vacant lot, they stopped in a location about five feet off the sidewalk, next to a building on the north side of the lot. At that time, Officer Doherty's vantage point of defendant was the "top of his head." When asked about defendant's interactions with the two women, Officer Doherty stated that they relocated from the sidewalk to the same spot in the vacant lot where defendant had interacted with the unidentified man, and that he "could hear conversation [but] wasn't able to determine what it was."

         ¶ 10 Finally, Officer Doherty testified on cross-examination that no money was inventoried after the custodial search. He did not recall whether any currency was recovered from ...

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