Court of Appeals of Illinois, First District, Fourth Division
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
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
"[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
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
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
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