People v. Flournoy, 2016 IL App (1st) 142356 (November). Episode 259 (Duration 11:44)

Abuse of discretion to apply the surveillance location privilege in this case.

Facts

An officer testified that he observed defendant commit an open air hand to hand drug transaction. The officer was about 20 feet from defendant, it was daylight, nothing obstructed his view, and he had a clear line of sight.

Then he could see defendant in an alley with 2 women who gave him money for drugs.

Defendant was arrested and found to be in possession of 8 smaller ziplock bags of with heroin.

Interestingly, no money is found on defendant.

Surveillance Location

Defendant asked for the exact location but the judge refused to tell him claiming he found that the State had made a preliminary showing that disclosure of the surveillance location would harm the public interest and should remain privileged.

On cross-examination, the officer 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. 

Issue

On appeal, defendant contends that this court should reverse his conviction and remand for a new trial because the trial court improperly denied his request for disclosure of the surveillance location. 

Surveillance Privilege Rationale

Illinois courts have recognized a qualified privilege regarding the disclosure of secret surveillance locations. See People v. Britton, 2012 IL App (1st) 102322, ¶ 26.

This privilege was first recognized in People v. Criss, 294 Ill. App. 3d 276 (1998), in which the Fourth District held that in certain circumstances, surveillance officers are not required to disclose their exact surveillance locations on cross-examination.

The court relied on the rationale behind the privilege protecting law enforcement informants, and held that “the State may refuse to disclose the identity of law enforcement informants, so long as the nondisclosure will not deny an accused his constitutional rights.”

The supreme court has never confronted this issue.

The Standard

It is well established by Criss and its progeny that whether disclosure is required is determined on a case-by-case basis.

A trial court must balance the public interest in keeping the location secret against the defendant’s interest in preparing a defense. The more important a State’s witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.

Where the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.

In contrast, where there is no question about the surveillance officer’s ability to observe, or where evidence appears on a contemporaneous video recording, disclosure would not be required.

The Test

The State bears the initial burden of proof in demonstrating that the surveillance privilege should apply in a given case. See People v. Price, 404 Ill. App. 3d 324, 331 (2010).

The State carries this burden of proof by presenting evidence to the trial court that the surveillance location was either

(1) on private property with the permission of the owner, or
(2) in a location that is useful and whose utility would be compromised by disclosure.

In order to evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, in which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of the location would harm the public interest.

The trial court should then weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.

The Factors

The factors the court should consider regarding the public interest in nondisclosure are the crime charged, the possible defenses, and the potential significance of the privileged information.

Burden Shifting

If the State carries its burden at the in camera hearing, the burden of persuasion shifts to the defendant to overcome the privilege.

“A trial court has more discretion in declining to order the disclosure of an informant’s identity during a preliminary hearing than it does at trial.”

In the context of a pretrial hearing, the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret in order to compel disclosure.

However, where the State seeks to invoke the privilege in the trial context, due process requires that at trial the defendant need only show that the location is “relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause” in order to overcome the privilege.

Analysis

Even assuming the trial court was correct that the State met its initial burden at the in camera hearing in this case, the trial court did not proceed from that point to determine whether defendant had overcome the privilege.

Although a trial court enjoys broad discretion to limit the scope of cross-examination, failing to conduct any balancing inquiry constitutes an abuse of that discretion.

Even where the State properly claims privilege, the trial court must still determine whether the defense has overcome the State’s claim.

Holding

Here, disclosure was warranted here because the officer's testimony concerning what he saw from his surveillance location was the linchpin of the State’s case.

The State did not present any additional occurrence witnesses, inculpatory statements, or contemporaneous video recordings.

Moreover, although the officer reported that he saw defendant receive paper currency from three separate buyers and represented that he never lost sight of defendant, no money was recovered from defendant.

This circumstance seriously calls into question the officer's ability to observe, and in turn, his account of events.

Where a case turns almost exclusively on an officer’s testimony, a defendant’s need for location information is great and disclosure must almost always be ordered.

This is just such a case.

Additionally, our case law is consistent that when the surveillance location privilege is invoked, the State bears the initial burden of proof that the privilege should be applied. The State carries its burden of proof by disclosing the surveillance location in camera and presenting evidence that the surveillance location was either on private property with the permission of the owner or in a useful location that would be compromised by disclosure.

Transcripts A Good Idea

We hold that where, as here, the State requests the invocation of the surveillance location privilege, the trial court should not only hold an in camera hearing, but should also ensure that a transcript of that hearing is created, and preserved for appellate review. Ensuring that the in camera hearing is transcribed should be, at most, a minor inconvenience for the trial court, since criminal proceedings are routinely transcribed.