People v. Dailey

2018 IL App (1st) 152882

No. 1-15-2882

Opinion filed September 4, 2018

Second Division
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 5573
)
JULIAN B. DAILEY, ) Honorable
) James B. Linn,

Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Mason concurred in the judgment and opinion.
Justice Walker specially concurred, with opinion.

OPINION

¶1 Following a bench trial in Cook County circuit court, defendant Julian B. Dailey was

found guilty of possession of a controlled substance and sentenced to 30 months in prison. On

appeal, defendant contends that the trial court erred when it denied his motion to quash arrest and

suppress evidence because the police lacked “reasonable suspicion and probable cause” to stop

defendant’s van after witnessing one hand-to-hand transaction. We affirm.

¶2 Following his arrest on February 12, 2013, defendant was charged by information with

the offense of being an armed habitual criminal, possession of a controlled substance with intent
No. 1-15-2882

to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled

substance.

¶3 Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in

pertinent part, that police officers lacked probable cause to believe that defendant or anyone else

in the vehicle had committed a crime “from within the vehicle.” The matter proceeded to a

simultaneous hearing on the motion and a bench trial.

¶4 Chicago police officer Thomas Carey testified that on February 12, 2013, he and two

other officers were driving southbound when he saw a van that was stopped in the middle of the

street. Carey watched a “male black citizen” run from the sidewalk to the driver’s side window,

hand the van’s driver currency, and receive “small items” in return. The person who received the

items looked in Carey’s direction and then fled in one direction, while the van went in the other

direction “at kind of a high rate of speed.” Carey, who had been a police officer for 20 years,

believed that he had observed a narcotics transaction. During his career he had observed several

thousand such transactions.

¶5 Carey and his partners followed the van and curbed it. The driver, whom Carey identified

in court as defendant, then exited the van. Carey had not ordered the driver to exit the vehicle. As

defendant walked toward Carey, he stated “ ‘I ain’t got shit.’ ” The officers exited their vehicle at

the same time. As defendant continued to approach the officers, Carey observed a “marble-size

object” drop from defendant’s right hand and fall to the ground. Carey walked past defendant

and picked up the object while another officer detained defendant. He described the object as a

plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was

subsequently inventoried. After defendant was placed in custody, Carey informed him of the

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Miranda warnings (see Miranda v. Arizona, 384 U.S. 436 (1966)). Defendant indicated that he

understood his rights and then made a statement.

¶6 Defendant stated that his mother had just passed away and that he was trying to make

some money to keep his buildings. Defendant further stated that he had “a drug case in the

morning” and that his attorney told him to “do anything he could to stay out of trouble.”

Defendant also stated that he had “a gun by a garage” and asked whether the officers would let

him go if he showed them the gun’s location. Carey and his partners then followed defendant’s

directions to a certain backyard. There, defendant indicated that a gun was inside a grill. Carey

exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill

was a loaded .45-caliber gun. Carey handed the gun to one of his partners and went to speak to

the homeowner. Carey then took defendant into custody for the handgun. The handgun was

subsequently inventoried. During a subsequent conversation, defendant was asked why he had

the handgun. He indicated that “the Nashes were mad that he was making money and he was

afraid they were going to pop him off.”

¶7 During cross-examination, Carey testified that he observed a “very quick exchange” of

“small items” and could not determine what the items were or their consistency. Although he

saw currency being given to the driver of the van, he could not determine the amount. Carey

acknowledged that he did not see any movement inside the van; rather, he observed defendant

stick an arm out of the van and hand over small items. Carey did not recall speaking to a man

named Lee Miller and denied that Miller gave him the handgun at issue. He never saw defendant

in possession of a gun.

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¶8 The parties stipulated that the contents of the bagged items recovered weighed 1.3 grams

and contained heroin.

¶9 The defense then presented the testimony of Lee Miller, defendant’s neighbor. Miller

testified that he was sitting on his “buddy’s porch,” when an officer approached and asked him to

drive defendant’s van to Miller’s house so that it would not be towed. Police officers then

followed him to his house. As Miller parked the van, two officers approached him and told him

to get out of the van and that defendant wanted to talk to him. Miller then went to speak with

defendant, who was handcuffed in the back of a police car. Defendant asked Miller to take care

of his van so that it would not be towed, and Miller agreed. A police officer then stated that

defendant would be let go if officers could get “a gun off the street.” Miller then walked,

accompanied by two officers, to his home. There, he retrieved a gun from the attic and gave it to

the officers. The gun did not belong to defendant, and defendant did not have access to it.

¶ 10 The trial court then denied defendant’s motion to quash arrest as, “[l]ooking at it in its

totality,” “the circumstance of the officers’ encounter with” defendant was not an “offense” to

the fourth amendment. The court next stated that it had heard the evidence and found Officer

Carey to be “a more credible and compelling witness” than Miller. The court then noted that the

case concerned a “very unusual sequence of events” and concluded that it was “not exactly sure

what happened with the gun” and “what kind of possession” defendant had. Therefore, the court

gave defendant “the benefit of the doubt” with regard to the offense of being an armed habitual

criminal, possession of a controlled substance with intent to deliver, and unlawful use or

possession of a weapon by a felon. However the court found that the bag of heroin belonged to

defendant and, accordingly, found him guilty of possession of a controlled substance.

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¶ 11 Defendant filed a motion for a new trial alleging, inter alia, that the trial court erred when

it denied defendant’s motion to quash arrest and suppress evidence. The trial court denied the

motion and sentenced defendant to 30 months in prison.

¶ 12 On appeal, defendant contends that the trial court erred when it denied his motion to

quash arrest and suppress evidence because Officer Carey lacked reasonable suspicion and

probable cause to curb defendant’s van. Defendant notes that Carey only saw one hand-to-hand

transaction.

¶ 13 The fourth amendment to the United States Constitution provides that the “right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. Const., amend. IV. When a police officer stops a

vehicle and detains its passengers, a “seizure” within the meaning of the fourth amendment has

occurred. People v. Timmsen, 2016 IL 118181, ¶ 9. “Therefore, a vehicle stop is subject to the

fourth amendment requirement of reasonableness in all the circumstances.” People v. Jones, 215

Ill. 2d 261, 270 (2005).

¶ 14 We analyze the reasonableness of traffic stops pursuant to the principles set forth in Terry

v. Ohio, 392 U.S. 1 (1968). Here, the parties agree that defendant was subjected to a Terry stop.

“Pursuant to Terry, a police officer may conduct a brief, investigatory stop of a person where the

officer reasonably believes that the person has committed, or is about to commit, a crime.”

Timmsen, 2016 IL 118181, ¶ 9. In order to justify a stop, “the officer must point to specific,

articulable facts which, when considered with natural inferences, make the intrusion reasonable.”

People v. Simpson, 2015 IL App (1st) 130303, ¶ 23.

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¶ 15 Under this reasonable suspicion standard, the facts necessary to justify a Terry stop do

not need to rise to the level of probable cause and can be satisfied even if no violation of the law

is observed, but the facts must go beyond a mere hunch. People v. Maxey, 2011 IL App (1st)

100011, ¶ 46. A police officer’s decision to conduct a Terry stop is a practical one based on the

totality of the circumstances. In re Elijah W., 2017 IL App (1st) 162648, ¶ 36. A reviewing court

applies an objective standard when deciding “whether the facts available to the officer at the time

of the incident would lead an individual of reasonable caution to believe that the action was

appropriate.” People v. Colyar, 2013 IL 111835, ¶ 40.

¶ 16 In reviewing a trial court’s ruling on a motion to quash arrest and suppress evidence, this

court applies a two-part standard of review. People v. Grant, 2013 IL 112734, ¶ 12. We accord

great deference to the trial court’s factual findings and will reverse them only if they are against

the manifest weight of the evidence; however, we review the trial court’s ultimate ruling on the

motion de novo. Id.

¶ 17 Here, given the totality of the circumstances, the decision to stop the van that defendant

was driving was proper under Terry. Carey, a police officer who had observed several thousand

narcotics transactions during his 20-year career, testified that he observed a man run up to a van

stopped in the middle of the street and exchange currency for “small items,” then run away.

Based upon these actions, Carey believed that he had observed a narcotics transaction, and

officers then proceeded to follow and curb the van, which had driven away at a high rate of

speed. See People v. Lomax, 2012 IL App (1st) 103016, ¶ 40 (noting that police officers are

often required to make “split-second decisions, without the benefit of immediate hindsight” in

tense and rapidly evolving situations). Moreover, once defendant’s vehicle was curbed,

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defendant exited on his own accord without being instructed to do so by officers and then

proceeded to drop a small object to the ground as he walked toward officers.

¶ 18 Although defendant is correct that Carey admitted that he could not determine exactly

what the “small items” were, there is no requirement that Carey know that the items were

definitely contraband or that he assign an innocent explanation to the exchange. See, e.g., People

v. Love, 199 Ill. 2d 269, 277 (2002) (concluding that innocent explanations for the defendant’s

pulling an item from her mouth and giving it to a man in exchange for money were

“implausible,” when “common sense dictates that the man probably did not go out at 1:50 a.m. in

late January for prechewed gum”). Rather, the question is whether the facts “available” to Carey

at the time would “lead an individual of reasonable caution to believe” that the stop was

appropriate. See Colyar, 2013 IL 111835, ¶ 40.

¶ 19 In the case at bar, there were “specific, articulable facts” upon which Carey relied to

justify stopping defendant, that is, a van was stopped in the middle of the road, an exchange of

money for small items took place, and the parties involved immediately went their separate

ways. See Simpson, 2015 IL App (1st) 130303, ¶ 23 (although “the facts forming the basis of

reasonable suspicion” do not require an officer to actually observe a crime, the determination of

reasonable suspicion must be based on commonsense judgments about human behavior). We

therefore conclude that the trial court properly denied defendant’s motion to quash arrest and

suppress statements.

¶ 20 We are unpersuaded by defendant’s reliance on People v. Ocampo, 377 Ill. App. 3d 150

(2007). In that case, an officer testified that a person was in a parked car at a gas station talking

on a cell phone. The defendant walked up to the car, tapped on the trunk, and got in the front

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passenger seat. The driver and the passenger exchanged a look and had a short conversation, and

the defendant moved as if he were taking something out of his pants pocket. The officer could

not hear the conversation and did not see the defendant’s hands. On appeal, the court found that

those facts provided the officer with only a hunch of criminal activity, when although the

defendant’s actions were consistent with a drug transaction, they were also consistent with other

innocent scenarios. Id. at 162. The court also noted that the testimony did not indicate that the

police had any reason, other than the defendant’s actions, to suspect criminal activity. Id. Rather,

the police observed the defendant “purely by coincidence, not as part of a stakeout of a known

drug-trafficking area.” Id.

¶ 21 In the case at bar, defendant’s van was not parked; rather, it was stopped in the middle of

the street. Moreover, unlike Ocampo, where the defendant got into a car and then proceeded to

have a conversation with another person, here, a man ran up to the van, exchanged money for

small objects, and then immediately ran away. Additionally, unlike Ocampo, Carey actually

observed the exchange.

¶ 22 We are similarly unpersuaded by defendant’s reliance on People v. Petty, 2012 IL App

(2d) 110974. In that case, police officers observed as two cars parked at a gas station, and the

drivers of both cars then exited their vehicles, engaged in a hand-to-hand transaction of “some

unknown object or objects,” and got back into their vehicles. Id. ¶ 3. Officers then stopped the

defendant’s vehicle, and cannabis was recovered. The trial court denied the defendant’s motion

to suppress, finding that officers believed that they had witnessed a drug transaction. On appeal,

the court relied on Ocampo to reverse, determining that the defendant’s conduct was consistent

with “any number of innocent scenarios,” that the officers happened upon the defendant by

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coincidence, and that, other than the observed actions, the officers had no reason to suspect that

criminal activity had occurred. Id. ¶ 17.

¶ 23 Petty is distinguishable on the basis that in the instant case Carey testified that he

observed the hand-to-hand transaction and the fact that defendant’s van was parked in the middle

of the street rather than in a parking spot. Moreover, after the exchange, both parties rapidly left

the area, that is, the man fled on foot, and defendant drove away “at kind of a high rate of speed.”

¶ 24 Here, given the totality of the circumstances, Carey relied upon “specific, articulable

facts” (Simpson, 2015 IL App (1st) 130303, ¶ 23), as justification for the stop of the van.

Considering the facts available to Carey at the time, we conclude that “an individual of

reasonable caution” would believe that Carey’s action was appropriate (Colyar, 2013 IL 111835,

¶ 40) and, accordingly, the trial court properly denied defendant’s motion to quash arrest and

suppress evidence.

¶ 25 Having determined the officers had reasonable suspicion to conduct a Terry stop of

defendant, we need not address his argument that the evidence obtained should be suppressed as

the fruit of an unlawful stop.

¶ 26 Finally, this court has identified a troubling delay in this case.

¶ 27 This is a relatively simple case, and the chronology of events demonstrates the problems

this court and defendant face in dealing with appeals in a timely manner:

Aug. 25, 2015: Finding of guilty, sentenced to 30 months in prison

Aug. 31, 2015: Notice of appeal (NOA) filed with clerk of the circuit court

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Sept. 11, 2015: Clerk of the circuit court transmitted the NOA to the clerk of the

appellate court; State Appellate Defender (SAD) appointed to

represent defendant

Oct. 2, 2015: SAD notified of appointment

Oct. 15, 2015: NOA filed by clerk of the appellate court

Nov. 12, 2015: SAD motion to extend time to file the record to Jan. 4, 2016,

granted; SAD has not yet received transcript; court reporter

generally takes 7 months to get the transcript done

Nov. 18, 2015: SAD ordered report of proceedings

Dec. 9, 2015: Docketing statement filed

Jan. 6, 2016: SAD motion to extend time to file the record to Feb. 19, 2016;

SAD has not yet received transcript; SAD expects it will be six

more months before it receives the transcript; SAD expects the

clerk of the circuit court will need two weeks to prepare the record

Jan. 14, 2016: SAD received record from clerk of the circuit court

Mar. 1, 2016: SAD motion to extend time to file record to May 2, 2016; SAD

expects it will take four more months to get the transcript

Apr. 5, 2016: Certificate in lieu of record filed

May 10, 2016: SAD motion to extend time to file brief to July 12, 2016, granted;

SAD very busy and expects 10 months before it gets to this case

July 13, 2016: SAD motion to extend time to file brief to Sept. 13, 2016, granted;

SAD very busy and expects nine months before it gets to this case

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Sept. 12, 2016: SAD motion to extend time to file brief to Nov. 15, 2016, granted

(marked final); SAD very busy; expects seven months before it

gets to this case

Apr. 10, 2017: Record filed

July 6, 2017: SAD motion to file brief instanter granted

Aug. 8, 2017: State’s Attorney’s office (SAO) motion to extend time to file brief

to Oct. 10, 2017; SAO very busy (one full month after SAD filed

its brief)

Oct. 12, 2017: SAO motion to extend time to file brief to Dec. 11, 2017, granted;

SAO very busy

Nov. 16, 2017: SAD motion to supplement record with stipulation and certified

copies of convictions granted

Dec. 13, 2017: SAO motion to extend time to file brief to Feb. 12, 2018 granted;

SAO very busy

Mar. 30, 2018: SAO motion to file brief instanter granted; SAO very busy

Apr. 2, 2018: SAD notified clerk of the appellate court of defendant’s civilian

address; defendant no longer in prison

Apr. 9, 2018: SAD reply brief filed

Apr. 17, 2018: SAD motion to supplement record granted

Apr. 17, 2018: Original transcript, one volume, filed with clerk of the appellate

court

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¶ 28 We specifically add this chronology to illustrate the inordinate delay in addressing the

merits of this appeal. On August 25, 2015, the trial court sentenced Julian Dailey to 30 months in

prison on his possession of narcotics conviction, and his notice of appeal was filed on August 31,

2015. With credit for time served in pretrial custody (he was arrested on August 8, 2014), Dailey

was eligible for release less than one year later on August 8, 2016. Dailey was subject to a one-

year period of mandatory supervised release (MSR), which expired on August 8, 2017.

¶ 29 The certificate in lieu of the record was not filed until April 5, 2016, more than seven

months after the trial court entered judgment and four months before Dailey’s scheduled parole

date. His opening brief on appeal was not filed until more than a year later, on July 6, 2017, or 11

months after Dailey’s release from prison and one month before the expiration of his MSR term.

¶ 30 His reply brief was not filed until April 9, 2018, long after he had fully served his

sentence. By the time this case was ready for this court to consider, there was no meaningful

relief we could have provided had there been any merit in the issue Dailey raised on appeal.

¶ 31 This is not justice.

¶ 32 This case demonstrates the complete breakdown of justice caused in part by inefficiencies

and in larger part by the failure of elected executive officials to assure that the State Appellate

Defender, the State’s Attorney, the clerk of the court, and the court reporter’s office have the

resources they need to prepare criminal cases quickly and effectively.

¶ 33 The clerk of the circuit court did not transmit the record to the State Appellate Defender

until January 14, 2016, even though it was requested November 11, 2015. The State Appellate

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Defender ordered the transcript November 18, 2015, and the court reporter did not provide it—

one volume—until sometime around May 10, 2016. 1

¶ 34 The State Appellate Defender cannot begin working on briefs until it has the common-

law record and transcripts. The State’s Attorney cannot begin working on briefs until it sees the

brief filed by the State Appellate Defender and the record. Neither party can begin to do anything

until the clerk of the court prepares the common-law record and the court reporter prepares the

transcript.

¶ 35 And this court cannot do anything with the case until it is ready, that is, until the

complete record, both briefs, and the reply brief are filed here. The defendant’s Notice of Appeal

was filed with the clerk of the circuit court on August 31, 2015. The certificate in lieu of the

record was filed here on April 5, 2016, and the record on appeal was not transmitted to this court

until April 10, 2017.

¶ 36 In this case we have specifically called attention to the State Appellate Defender’s

motions to extend time to file the record because it did not have the transcripts: November 12,

2015 (expect transcript to take seven months); January 6, 2016 (expect transcript to take about

six months); March 1, 2016 (expect the transcripts to take another four months).

¶ 37 Then the State Appellate Defender filed four motions to extend time because the office

was handling too many cases with too few attorneys: May 10, 2016, July 13, 2016, September

12, 2016, and then finally July 6, 2017, the brief was filed instanter. If the State Appellate

Defender got the transcripts around May 10, 2016, which is when it filed its first motion to

1
This situation is expected to improve for new cases under the e-filing mandates as the court
reporters’ use of digital equipment comes into use, but that will not help with hard-copy cases that are still
in the pipeline.

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extend time to file the briefs (so, it must have had the transcripts), then it took 14 months for the

State Appellate Defender to prepare the brief.

¶ 38 The State’s Attorney filed four motions to extend time because that office was also

handling too many cases with too few attorneys: August 8, 2017, October 12, 2017, and

December 13, 2017, and then finally the State’s Attorney filed its brief on March 30, 2018,

instanter. It took the State’s Attorney the better part of nine months to file its brief.

¶ 39 Under Illinois Supreme Court Rule 326 (eff. July 1, 2017) the record on appeal is due 63

days after the filing of the notice of appeal. Dailey’s record was due November 3, 2015; the State

Appellate Defender received the common-law record from the clerk of the circuit court on

January 14, 2016, fully 2½ months after it was due.

¶ 40 This case demonstrates perfectly the slippery slope we see all too often. Once it became

acceptable for every deadline to slide, the avalanche of missed dates was inevitable at every

level. And, this case is actually on the low end of the typical delays we see in criminal cases. On

average, it takes about one year for the clerk of the circuit court to transmit the record in criminal

cases to our court. We have seen in this case how a huge part of the problem is the length of time

it takes to get the transcripts from the court reporter.

¶ 41 We respectfully suggest that the Governor review the budget of the State Appellate

Defender to assure that it is staffed appropriately. E-filing of documents will speed up the

process of receiving the “paperwork,” but it cannot, without sufficient staff, speed up the process

of reviewing cases for appealable issues, drafting and preparing motions and orders, and

preparing for and handling oral argument.

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¶ 42 We ask the state budgeteers to assure that the court reporter’s office has the resources

necessary to transmit transcripts efficiently.

¶ 43 In addition, we ask the president of the county board and the board to take notice that,

even with paperwork available through e-filing, there still needs to be sufficient personnel to

read the material and write the motions and briefs and prepare for and handle oral argument. The

State’s Attorney’s office is clearly stretched, resulting in situations like this one.

¶ 44 We suggest the State Appellate Defender review assignment protocols, where defendants

with short sentences might be considered out of order.

¶ 45 Let us reiterate the core principle of our democracy: that justice requires a speedy

resolution. Delaying appeals causes hardship on the defendant and his family; burdens the

appellate court with the unenviable task of deciding cases after the defendant has served his time;

may impact unnecessarily on the IDOC population headcount, resulting in unnecessary costs to

taxpayers; and, in cases where the appealable issue leads to a reversal or remand, may deny the

defendant of his most fundamental protected right: his liberty.

¶ 46 The judgment of the circuit court of Cook County is affirmed.

¶ 47 Affirmed.

¶ 48 JUSTICE WALKER, specially concurring:

¶ 49 I concur in the judgment reached by the majority opinion as well as its reasoning, but I

take no part in the discussion in paragraphs 26 to 45. The discussion in those paragraphs is dicta

and not essential to the disposition of the issues in this case.

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