People v. Flournoy
2016 IL App (1st) 142356
| Ill. App. Ct. | 2017Background
- On May 17, 2013, police surveillance led to Lucius Flournoy’s arrest; officers recovered a small bag of suspected heroin from his hand and additional bags from his waistband at the station. He was charged with possession with intent to deliver and possession.
- At bench trial the State’s case relied principally on surveillance officer Brian Doherty’s testimony that he watched multiple hand-to-hand exchanges from an elevated surveillance position about 20 feet away in daylight.
- Defense moved pretrial to compel disclosure of the officer’s surveillance location (or at least general details about distance, elevation, and obstructions), arguing disclosure was needed to test the officer’s ability to observe and to preserve confrontation rights.
- The State invoked a qualified “surveillance location” privilege and the trial court held an off-the-record in camera hearing with another officer; no transcript of that hearing appears in the record.
- The trial court sustained the privilege, limited cross-examination, found Doherty credible, convicted Flournoy, and sentenced him to nine years. On appeal the court reviewed whether the privilege was properly applied and whether the in camera hearing/transcript procedure was adequate.
Issues
| Issue | People’s Argument | Flournoy’s Argument | Held |
|---|---|---|---|
| Whether the trial court properly upheld the surveillance-location privilege and denied disclosure of the officer’s surveillance location at trial | The State claimed the privilege and (via in camera hearing) showed disclosure would harm public interest; nondisclosure was appropriate here | Disclosure was necessary because the case turned on Doherty’s uncorroborated observations; location details were relevant to cross-examination and confrontation | Trial court abused its discretion: the privilege was improperly applied under these facts; disclosure should have been ordered or the State should proceed without the officer’s testimony |
| Whether the trial court complied with Rule 415(f) and preserved an appellate record of the in camera hearing | The State relied on the in camera hearing; no specific argument that the State had to insure transcription | Flournoy argued the court/State should have produced and sealed a transcript of the in camera hearing so appellate review is possible | Court held that when the State invokes the privilege the trial court should ensure a transcript of the in camera hearing is made and preserved; absence of a transcript prejudiced meaningful review |
| Whether nondisclosure can stand when the prosecution’s case depends almost exclusively on a single surveillance officer’s testimony | The State asserted public-interest harms outweighed disclosure | Flournoy argued that where case rests almost solely on one officer, disclosure is almost always required to test observation and credibility | Held disclosure ordinarily required where the case turns on an uncorroborated surveillance officer and the officer’s ability to observe is put in doubt; here nondisclosure was improper |
| Constitutional challenge to the surveillance-location privilege (Confrontation Clause) | The State maintained privilege is qualified and can be applied consistent with rights | Flournoy argued the privilege violates the Sixth Amendment right to confront witnesses | Court did not reach the constitutional question (decided on nonconstitutional grounds) |
Key Cases Cited
- People v. Criss, 294 Ill. App. 3d 276 (Ill. App. Ct.) (first articulating qualified surveillance-location privilege)
- People v. Knight, 323 Ill. App. 3d 1117 (Ill. App. Ct.) (privilege requires different treatment at trial; disclosure often required when officer’s testimony is uncorroborated)
- People v. Price, 404 Ill. App. 3d 324 (Ill. App. Ct.) (trial court must balance public interest against defense need and may not apply privilege without such inquiry)
- People v. Coates, 109 Ill. 2d 431 (Ill. 1985) (Rule 415(f) procedures for in camera review and preservation of record discussed)
- People v. Deleon, 227 Ill. 2d 322 (Ill. 2008) (burden to request preservation of in camera record placed on party seeking review)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause protects the right to cross-examination)