People v. Dunn

1

2024 IL App (1st) 221451-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTIS DUNN, Defendant-Appellant.

No. 1-22-1451

Court of Appeals of Illinois, First District, Third Division

September 30, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 18 CR 9603 Honorable Thaddeus Wilson and Sophia Atcherson, Judges presiding.

JUSTICE D.B. WALKER delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.

ORDER

D.B WALKER JUSTICE

¶ 1 Held: The trial court erred in denying defendant's motion to suppress evidence when the investigatory stop exceeded the frisk permissible under Terry v. Ohio, 392 U.S. 1 (1968). The court's order denying the motion is reversed and defendant's conviction is vacated.

¶ 2 Following a bench trial, defendant Otis Dunn was found guilty of possession of a controlled substance and sentenced to four years in prison.^[1] On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence when the police lacked reasonable suspicion to stop, seize, and pat him down. He further contends that he was denied effective assistance when trial counsel failed to allege that his statement should be suppressed because police officers violated his fifth amendment rights. For the following reasons, we reverse the trial court's denial of defendant's motion to suppress evidence and vacate defendant's conviction.

¶ 3 I. BACKGROUND

¶ 4 Following events on December 1, 2017, defendant was charged by indictment with criminal drug conspiracy and possession of a controlled substance with intent to deliver. Trail Brown was also charged with criminal drug conspiracy and possession of a controlled substance with intent to deliver arising from the same incident.^[2]

¶ 5 A. MOTION TO SUPPRESS

¶ 6 On October 28, 2019, defendant filed a motion to suppress evidence, alleging that when police officers stopped and searched him, no reasonable person could have inferred that he was in violation of any law. According to the motion because the search and seizure was unreasonable, the evidence recovered pursuant to the search should be suppressed.

¶ 7 On December 11, 2019, the trial court heard argument on the motion to suppress. Prior to argument, the trial court asked whether the motion referred to "both" defendant and Brown. Defense counsel, who also represented Brown, stated that both men were in the "same" vehicle at the time of the stop, so it "cover[ed] both of them."

¶ 8 Chicago police officer Darren Ohle testified that on December 1, 2017, at approximately 6:20 p.m., he and his partner were on the 5000 block of West Augusta Boulevard in Chicago. There, they conducted an investigatory stop on a silver Chevrolet van. Ohle identified defendant and Brown, in court, as the van's occupants. Defendant was driving and Brown was in the front passenger seat. Ohle did not observe defendant commit a traffic violation and did not have a warrant.

¶ 9 After curbing the van, Ohle asked defendant and Brown to exit the vehicle. Both complied. Ohle then performed a protective patdown of each man to ensure that neither had weapons. Ohle recovered a bag of narcotics from defendant's front right pocket. Ohle acknowledged that no part of the bag was "sticking out" of the pocket; rather, he felt a large object and asked defendant what it was. Defendant was not handcuffed at this time. Defendant stated that it was his "work," which Ohle understood "as being narcotics." Ohle asked "how much," and defendant replied, "eight."

¶ 10 The object recovered from defendant was a clear plastic bag which contained several smaller bags. The exterior bag was "[m]aybe a little bit bigger" than Ohle's hand and its thickness was smaller than a baseball, but larger than a golf ball. Ohle "recovered" this item. After a conversation with defendant and Brown, the officers "released them." Because of an ongoing narcotics investigation, the men were not arrested.

¶ 11 During cross-examination, Ohle testified that, on December 1, 2017, a court order was in effect which allowed for the electronic surveillance of telephone calls to and from a phone used by an individual named Donald Holmes. Earlier that day, several calls were intercepted pertaining to "defendants" picking up narcotics. Based on this information and surveillance, officers determined that a narcotics transaction occurred between "defendants" and Holmes. Based on information received from officers in the "wire room," including a description of a vehicle, Ohle was directed to the 5000 block of West Augusta.

¶ 12 Ohle asked defendant and Brown whether they had any weapons before and after they exited the vehicle, and each time the men denied having weapons. During a protective patdown of Brown, Ohle felt a large bulge in Brown's front right pocket. After Brown stated that the bulge was money, Ohle looked inside the pocket to verify. After determining that the bulge was money, Ohle left the money in Brown's pocket.

¶ 13 Ohle felt a large, hard object in defendant's front right pocket that was larger than a golf ball. Based upon Ohle's experience and training, he believed that defendant's statement that this object was "work" meant that it was narcotics, and "eight" was the amount. The object consisted of a plastic bag containing eight bundles of small, black-tinted Ziploc bags, each wrapped in a black rubber band. The eight bundles, in turn, contained a total of 111 bags. Ohle believed that the bags contained suspect heroin and recovered these items. After defendant and Brown were released, Brown returned and asked for his "stuff" back.

¶ 14 During redirect, Ohle acknowledged that, although he had an idea of what was in defendant's pocket, it was not "immediately apparent," so he asked. Earlier on the day of the stop, the surveillance team saw defendant and Brown speaking with Holmes at an apartment complex in Oak Park. Ohle did not believe that the surveillance team observed a narcotics transaction, but, based on that conversation and phone surveillance, officers believed that a narcotics transaction occurred. Only Holmes's phone was "tapped."

¶ 15 When asked how officers knew that defendant or Brown were speaking to Holmes, Ohle replied that, based upon prior surveillance, officers had information on defendant and his vehicle. Ohle heard Brown on the phone prior to December 1, 2017, and was familiar with Brown's voice, but was not familiar with defendant's voice prior to the stop. Ohle did not know if defendant's phone was used to call Holmes or whether defendant spoke on a phone call to Holmes, and did not remember seeing defendant prior to December 1, 2017.

¶ 16 The State then called Chicago police detective Michael Galligan, who testified that in 2016 and 2017, he investigated a "drug trafficking organization." As part of the investigation, a judge granted an order to intercept calls relating to phone number 312-***-8255. This phone number, tied to a phone operated by Holmes, was referred to as target phone 11. Target phone 11 had contact with phone 773-***-7084 multiple times during the investigation. A "wire room" was maintained at a police station that intercepted and recorded phone calls and monitored pod cameras.

¶ 17 On December 1, 2017, officers monitored a pod camera near a Subway restaurant in the 3600 block of West Grand Avenue. At the hearing, Galligan identified "still shots" taken from that pod camera's video between 1:35 and 1:56 p.m., including one in which he identified defendant, Brown, and a silver van.^[3] Shortly after 6 p.m., Galligan responded to an investigatory stop involving defendant, Brown, and that van.

¶ 18 The State then presented a disk containing eight telephone calls recorded on December 1, 2017, to and from target phone 11. Galligan testified that this disk contained a true and accurate copy of the calls. When a call was intercepted, a transcript was generated. He identified the transcripts of these calls, which were "fair translations."

¶ 19 The State sought to enter the disk into evidence and to use the transcripts for "demonstrative purposes only." Defendant's counsel objected to the transcripts, which the court overruled, admitting the transcripts for demonstrative purposes only. The State later withdrew the transcripts for demonstrative purposes, and published them.

¶ 20 The State then played the calls.^[4] Galligan testified that the "louder and deeper" voice belonged to Holmes and the second voice was Brown, and that Brown was requesting narcotics. Another phone call was a discussion of how long it would take to prepare the narcotics. In a later call, Brown asked whether" '[i]t's already put together,'" and Holmes replied affirmatively, but stated that someone was out of rubber bands. Galligan explained that this conversation addressed narcotics packaging, noting that rubber bands are used to bundle individual bags of heroin. In another call, the men discussed a location in the 900 block of North Austin in Oak Park, where Holmes was previously observed. Following that phone call, Galligan arranged for surveillance at the North Austin location.

¶ 21 At the hearing, Galligan identified a photograph of the North Austin location, which he described as having a "driveway" that went to the back of the building. From the street, one could not see behind the building. Around 5:30 p.m. on December 1, 2017, Galligan observed the silver van drive to the back of the building. Approximately 6:03 p.m., he observed a vehicle, registered to Holmes, drive to the back of the building. Several minutes later, both vehicles departed. ...