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                              Appellate Court                            Date: 2018.12.03
                                                                         13:54:01 -06'00'




                   People v. Dailey, 2018 IL App (1st) 152882



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JULIAN B. DAILEY, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-15-2882



Filed             September 4, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-5573; the
Review            Hon. James B. Linn, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Emily E. Filpi, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Christine Cook, and Leonore Carlson, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             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 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 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.”

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¶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.
¶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.
¶ 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.

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       “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.
¶ 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, 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


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       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
       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 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.



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¶ 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
               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
               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

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               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
¶ 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
       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


           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.

                                                      -7-
       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
       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.
¶ 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



                                                   -8-
       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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