## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Britt on , 2012 IL App (1st) 102322

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ANTHO NY B RI TTON, De fenda nt-Appellant.

District & N o. First District, F ifth Division Docke t No. 1-10-2322

Filed Rehea ringdenied September 14, 2012

October 16, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appea l from a conviction for unlawful possession of heroin with intent
to deliver, the appellate court rejecte d defe ndant’s contention that there

was a brea

kdown in the chain of custody of the s ei z ed dru g s that amounted to reve rsible err or, and the trial co u rt did not abuse its discretion in deny

ing his motion seeking di s closure of the surveillance location used by

the police.

Dec ision Under Review App ea l from the Circuit Court of Cook County
, No. 09-CR-21113; the Hon. J ohn T. Doody , J r., Judge, pr esiding

.

J udg ment Affir med in part a

nd vacated in part.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Phili p D. Pay ne, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J oan F. Fr azier, and L aure n N. Br essack
, As sistant State’s Attorney s, of counsel), f

or the People.

Panel J USTI CE HOWSE delivered the judgment of the c ourt, with opinion. Presiding Justice McB ride c oncurr ed in the judg ment and opinion.
J ustice Epstein spec ially

concur red, w ith opinion.

OP INION

¶ 1 A jury found defe ndant guilty of possession of 1.2 g rams of heroin with intent to de liver and he was sentenc ed to 71⁄2 y ear s in prison. On appea l, defe n d an t co n t ends that his conviction should be reve rsed beca use of a bre akdown in the c hain of c ustody of nar cotics evidenc e used to sustain the conviction. Def endant also contends that t he trial court err ed when it denied his motion to compel disclosure of the surveillance location utiliz ed to observe him eng ag e in two narc otics transac tions. Def endant finally contends that he was improperly

assessed a

$200 DNA indexing f

ee. ¶ 2 In a pretria l motion and subsequent rene wal of that motion, defe nse counsel moved the
court to compel dis closure of the s urveillanc e location of Offic er L awr ence Olivare s, who conducte d surveillance of defe ndant on October 15, 2009 beg inning at approximately 2:30 p.m. E ach of two trial court judge s presiding at differ ent times over defe ndant’s case hear d
argument on the motion, conducte d in came ra hearings with Olivare s, and subseque ntly denied the motion. After examining Olivare s, J udg e Mary Roberts conclude d that since there

was no issue of identification, the location would not b e disclosed. J udg e Thomas Doody conclude d that the conce rn for office r and public safe ty outweighed def endant’ s interest in disclosure in this case , and also stated that defe ndant had the rig ht to cross-e x amine Olivare s on the wea

ther c onditions, l ighting , distance, e levation, and obstruc tions. ¶ 3 At trial, Olivare s testified that on Octobe r 15, 2009, at a pproxi mately

2:30 p.m., he set
up a narc otics surveillance in the are a of Roosevelt and Whippl e, a known narc oti cs area from which he had made previous arr ests, along with Offic er Mata and Serg eant Bla s. He

was the surveillance office r while Mata and Bla s wer e the enfor ceme nt office rs. Olivare s conducte d the surveillance from a cover t vehicle, from whi c h h e o b s e r v e d d e f e ndant standing i n front of a liquor store located at 3034 West Roosevelt Road, at the intersec ti o n o f Roosevelt and Whippl e. Def endant walked back and forth in front of the liquor store, but he

never left the c orner

of Roosevelt and Whipple. ¶ 4 Olivare s testified about the weather and traff ic conditions, e x plaining that Roosevelt is

-2-a busy street with four lanes of traff ic and that there was moderate vehicular and foot traff ic. He testified that it was a clea r day and nothing obstructed his view. Oli vare s was approximately 150 to 200 fee t awa y from defenda

nt, on ground l evel whil e i n h i s vehicle. He used binocu l ar s to observe defe ndant, and at differ ent times during the surveillance
, Olivare s had both a frontal view and side view of defe ndant. Def endant was wea

ring a black skull cap, a black jacke t with g ray sleeve s, and blue jeans. Olivare s had never seen defe ndant prior to this date. ¶ 5 Approxim ately five minutes afte r Oliv ar es b ega n h i s s urv ei l l ance, he observe d an unknown Afric an-Americ an m an approa ch defe ndant and g ive defe ndant an unknown
amount of cash, and then t h e t wo men walked acr oss Roosevelt to Doug las Park, wher e defe ndant rea ched up into a small tree and remove d a plastic bag
, remove d an item from the bag
, and g ave it to the man. Def endant then place d the plastic bag back in the tree

. There was

a blue rec ycling bin next to the tree

. When they crosse d th e s t re et , the two men wer e ap p roxi mately 50 fee t closer to Olivare s. After g iving the item to the unknown man , defe ndant walked back acr oss Roosevelt to the liquor store. Olivare s could not see what was in the plastic bag

. ¶ 6 Olivare s continued his surveillance

. Approxim ately 15 minutes later, another unknown A f ric a n

- Americ a

n ma n approa ched defe ndant. The two men crosse d Roosevelt, the u nk n o wn man gave defe ndant an unknown amount of cash, and defenda nt rea ched up i n to the s ame tree and g rabbe d the plastic bag
, remove d an item from it, and g ave it to the unknown man. Def endant then put the pla stic bagback into the tre e and the man walked awa y

. Def endant walked back to the liquor store. Olivare s could not see what the item was that defe ndant g ave to the man. Ba sed upon his experience
, Olivare s believed defe ndant to have eng ag ed in two

narc otics transac tions. ¶ 7 Olivare s radioe d to Bla s and Mata and descr ibed defe ndant as “a male black with a black skull cap, black jacke t and g ray sleeve s, blue jeans,” and told them defe ndant was standing by the liquor store on Roosevelt and Whippl e. Olivare s rema ined in radio contac t with Bla s and Mata until they detained defe ndant, and Olivare s confirme d they had the corr ect person. Olivare s then direc ted Bla s to the suspected na rcotics. B las crosse d Roosevelt, went to the
tree next to the blue rec ycling bin, rea ched up an d re m o ved the plastic bag

. Bla s notified Olivare s that the bagcontained suspe cted na rcotics. ¶ 8 Although Olivare s acknow ledg ed that he momentarily lost sight of defe ndant when a big truck drove by
, Olivare s testified that he never lost sight of defe ndant or the tree

. Aside from Bla s and defe ndant, no one else went to the immediate are a of the tree or touched the plastic bag or tree

. Olivare s could not testify to the specific location of the tree that defe ndant went to on October 15, 2009, beca use People’s Ex hibit 3, a photogr aph of the are a wher e the tree

was located, did not have the blue rec ycling bin in the photograp h

. Ol i v are s did not take photogr aphs or a video rec ording of the surveillance beca use he was eng ag ed in a short-term, daily investigation, wher eas vi d eo and photogr aphs are normally taken for long- term conspirac y

investigations. ¶ 9 Olivare s wrote the arr est repor t and the case repor

t, and in both repor

ts he indicated that four Z iploc bag s wer e rec overe d. He lear ned this number was incorre ct when the crime lab

-3-informed him that five Z iploc bag s wereinside the sandwich ba g

.

¶ 10 During cross-e x amination of Olivare s, defe nse counsel elicited that Olivare s was in the vicinity of Doug las Park, that car s wer e parke d along Roosevelt, and that Olivare s lost sight of defe ndant when trucks passed. Olivare s could not see what items wer e exchang ed betwee n defe ndant and the two unknown Afric an-America n men who approa ched h i m

. He did not indicate on his orig inal ca s e i n ci d ent repor t that the bag s had any color or prints, and he estimated the weight of the suspect heroin to be 0.4 g rams, with an estimated street value of $60. On redire ct, Olivare s clar ified that althoug h there wer e tree s in Doug las Park, the tree s

wer e not blockinghis view of def endant or of the tre e. ¶ 11 Serg eant Ronald Bla s testified t hat he was in radio co n t ac t wi th Olivare s and deta ined defe ndant based upon the descr iption that Olivare s provided. When Bla s first saw defe ndant, defe ndant was crossing Whippl e at the intersec tion of Whipple a nd Roosevelt. Bla s and Mata detained defen d ant and rec eived radio confirma tion from Olivare s that they detained the

corr ect person. Then, Olivare s direc ted Bla s to the tree and Bla s rec overe d a clear plastic sandwich ba gwhich conta ined what he believed to be four gree n and white smaller Z iploc bag s, eac h containing suspected heroin. He counted the Z iploc bag s without taking them out of the sandwich bag

. He later lear ned there wer e five bag s, not four. Aft er radioing to his partne rs that he rec overe d suspected narc otics, defe ndant wa s p la c e d in to c u s tody

. When they
went back to the 10th District police station, Bla s g ave the sandwich bag holding the smaller Z iploc bag s of suspected heroin to Mata. The narc otics wer e in Bla s’ constant car e, custody
, and control from the time he rec overe d them from the tree to the time he g ave them to Mata. On cross-e x amination, Bla s testified that he did not see any hand-to-ha nd transac tions or buy ers. ¶ 12 Offic er Ricardo Mata confirme d Bl as ’ an d Ol i v ares’ testimony reg ardingdetaining defe ndant. Additionally
, Mata also testified that while at the station, he conducte d a custodial

sear ch of defe ndant and rec overe d $21. Mata then rec eived the narc otics from Bla s, and Mata inventoried it under number 11818390. Mata counted the Z iplocs bag s of narc otics throug h the larg er plastic bag
, and he believed there wer e four bag s. He did not empty the sandwich bag to count the Z iploc bag s. Mata identified People’s Ex hibit 4(a) as the Z iploc bag s of suspected narco t ics he inventoried in this case on October 15, 2009, and People’s Ex hibit 4(b) a s the plastic sandwic h bagthat held the smaller Z iploc bag s. ¶ 13 Mata inventoried the narc otics by placing them in a plastic bag
, labeling it with the ty pe of suspected narc otics–heroin, descr ibing how t h e n ar cotics wer e packa g ed, assig ning a unique inventory number, and heat- sealing the packa g e. Mata testi fi ed t h at at the time of inventorying the narc otics and of providing g rand jury testimony
, he believed there wer e four Z iploc bag s, but he later lear ned there wer e five. He testified that there was no differ ence in the nar cotics he inve ntoried and the narc otics he testified to. ¶ 14 On cross-e x amination, Mata admitted that althoug h he did not observe Bla s retrie ve the items from the tree in Doug las Park, the items never theless stayed in Bla s’ possession until they reloc ated to the station. He also testified that he did not indicate on his inventory repor t that the clea

r plastic bag s had any g ree n marking s on them and that he did not indicate any marking s on the repor

t at all.

-4-¶ 15 L inda J enkins, fore nsic chemist for the I llinois State Police, testified that she rec overe d

the narc otics from the I llinois State Police drug chemistry vault in a seale d condition. When J enkins counted the bag s, she emptied them out and noticed that there wer e five Z iploc bag s and not four, as the inventory repor t indicated. She sent a discrepa ncy repor t to the Chicag o police depar

tment but did not rec eive a response

. J enkins testified to a rea sonable degree of scientific cer

tainty that the substance tested positive f or heroin and weighed 1.2 g rams. On

cross-e x amination, J enkins testified that the items she tested had the same inventory number and that the inventory repor t did not indicate g ree n and y ellow marking s on the Z iploc bag s. Howeve r, the ba g s were clea r, as the inve ntory

repor t describe d. ¶ 16 Following J enkins’ testimony
, the State moved to admit People’s Ex hibits 4(a) and 4(b)
, but defe nse counsel objected, arguing that the State failed to lay a p ro p er foundation. The trial court admitted the evidenc e over defe ndant’s objection. After t h e S t ate rested, the defe nse moved for a direc ted finding
, which the trial court summarily denied. The jury found defe ndant guilty of poss ession of her oin with intent to deliver. In defe ndant’s motion for a

new trial, defe nse counsel arg ued that the trial court err oneously admitted People’s Ex hibit Numbers 4(a) and 4(b) due to a lack of a proper chain of custody
, but the trial court denied the motion, finding there was a proper chain. Def endant was sen t en ce d to 71⁄2 y ear s of imprisonment. Among other fines and fee s, the trial cou rt imposed a $200 DNA indexi ng fee

. ¶ 17 On appea l, defe ndant contends, first, that his conviction for p o s s es s i o n wi th intent to deliver should be reve rsed due to a brea kd o wn i n the chain of custody for the narc otics. When revie wing the trial co u rt ’s ru l ing on the sufficie ncy of a chain of custody
, courts of revie w will reve rse the trial court’s ruling only upon a finding of abuse of discretion. People v. Howard, 387 I ll. App. 3d 997, 1004 (2009). ¶ 18 As an initial matter, in order to convict a defe ndant of unlawful possession of a controlled substance, the State must prove that the materia l rec overe d from the defe ndant is in fac t a controlled substance. People v. W oods
, 214 I ll. 2d 45 5
, 466 (2005). In narc otics case s, in which the phy sical evidence is not rea dily identifiable or ma

y be susce ptible to tampering
, contamination, or exchang e, the State must establish a chain of custody

. Id. at 467. The State establishes a prima faci e s h owing of a sufficie nt chain of custody for narc otics by establishing that rea sonable protec tive measure s wer e taken to ensure that the evidenc e has
not been tampered wi th, substitut ed or altere d betwee n the time of seizure and fore nsic testing. Id. at 468. Once the State makes its prima facie showing
, the b u rd en s h i ft s to the defe ndant to produce evidenc e of actua l tampering
, alteration or substitut ion. The burden then ag ain shifts to the State to rebut the defe ndant’s claim. Id. The defe ndant is not require d
to show evidenc e of actua l tampering or substitut ion unless th e S tate first establishes its prima facie showing that it is improbable that the evidenc e was compromised. Id. I f there has been no evid en ce that the evidenc e was compromised, the State does not need to exclude

ever y possibili ty of tampering or contamination. People v. Lundy
, 334 I ll. App. 3d 819, 826 (2002) (quoting People v. Bynum
, 257 I ll. App. 3d 502, 510 (1994))

. It need only show that it took rea sonable protective measures afte r t he evidence was seiz ed and that it is unlikely that the evidenc e has be en alter ed. Id. ¶ 19 The State made a prima facie showing of a sufficie nt ch ai n o f cu stody

. The dispar ity

-5-betwee n the number of Z iploc bag s that Bla s rec overe d from the tree and the number tested

by J enkins was a single bag

. The testifying office rs all admitted to being mistaken about the number of packe ts and admitted that they did not empty the contents of the plastic sandwich bag to count the individual Z iploc bag s. There is no evidenc e in the rec ord that Olivare s weighed the bag s on a scale

. Rather, Olivare s testified that Mata m er el y showed him the evidenc e. Fur

ther, both th e ar re s t and incident repor ts he prepa

red indicate that Olivare s estimated the weight to be 0.4 g rams. ¶ 20 Fur

ther, the State p re s en t ed sufficie nt evidenc e of handling and safe keepingbetwee n Mata and J enkins. Mata inventoried the narc otics by placing them in a plastic bag
, labeling it as heroin, the ty

pe of suspected narc otics, descr ibing the packa g ing as clea r bag s, assig ning it a unique i nventory number, and heat- sealing the packag e. Jenkins rece ived the evide nce in a heat- seale d condition under the same inventory number. Although the inventory repor t did not indicate that the Ziplo c b ag s had gre en and y ellow m arking s, J enkins testified t hat the bags were never

theles s cl ear, as t he inventory repor t descr ibed. The fac t that Olivare s, Mata, and Bla s mistakenly counted four Z iplocs without taking the bag s out of the plastic sandwich bag to individually count them, and J enkins did in fac t empty the contents to find five bag s, does not amount to such a brea kdown in the chain of custody that it war rants a finding of abuse of discretion for the trial court’s acc epting People’s Ex hibits 4(a) and 4(b) into evidence

. ¶ 21 Def

endant relies on People v. Terry
, 211 I ll. App. 3d 968 (1991), and People v. Gibson
, 287 I ll. App. 3d 878 (1997), to support his argument that there was a complete br eakdown in the chain of custody
, thus war ranting this court’s reve rsal of defe ndant’s conviction on the basis of the State’s failure to prove the element of possession. Howeve r, both of defe ndant’s cited cases are distinguisha ble. The disparities in Terryare signific antly differ ent from the
pre s en t case beca

use not only was there a 10-pac ket disparity in the number of packe ts

rec overe d versus the number tested in Terry
, but also the descr iption of the actua l substance

was signific antly differ ent. Terry
, 211 I ll. App. 3d at 972-73. In Terry
, the office r rec overe d and inventoried white powder
, while the fore nsic chemist tested a substance “satura ted in a y ellow uremic substance.” Id. at 973. Finally
, the inventorying office r estimated the weight
to be 8 g rams, while the actua l weight established by the fore nsic chemist was 12 g rams. Id

. ¶ 22 In Gibson
, this c ourt held that the State fa iled to prove a sufficie ntly

complete c hain of custody wher e the inventorying office r weighed narc otics and found the narc otics to weigh
ap p rox imately 2 g rams, but the stipulated testimony of the fore nsic chemist found the

narc otics to weigh 9.3 g rams, an almost five-f old incre ase. Gibson
, 287 I ll. App. 3d at 882. Additionally
, unlike the evidenc e of handling and safe keeping between Bla s, Mata, and J enkins prese nted in the prese nt case , there was also no evidenc e reg arding handling and safe keeping betwee n the inventorying office r and t h e ch em i st in Gibson
, nor was there evidenc e of the proce dures the inve ntorying of fice r employ ed to ensure the safe keepingof the nar cotics. Id. Ba sed upon t he for eg oing, w e ca nnot conclude that the trial court a bused its discretion in ruling the S tate p resented s ufficie nt evidenc e of a proper chain of custody for People’ s Ex hibits 4(a) and 4(b), and in a dmitti ngthose exhibi ts. ¶ 23 Def

endant ne x t contends that the trial c ourt err ed whe n it denied hi s motion to compel disclosure of Olivare s’ surveillance location. Def endant did not raise this issu e in h is p o sttrial

-6-motion, thus it was waived. People v. Enoch
, 122 I ll. 2d 176 (1988) (in order to prese rve an

er ro r for appea l, the err or must be objected to and included in the posttrial m o t i o n ). Def endant invokes the plain err or doctrine to by pass the principles of waiver

. The plain err or doctrine allows a revie wing court to consider an unprese rved err or when a clea r or obvious

er ror occur

red and (1) the evidenc e is closely balanc ed or (2) the err or is so serious that i t af fe cts the fairness of defe ndant’s trial and challeng es t he int egrity of the judi cial process. People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007); see also W oods
, 214 I ll. 2d at 471-72. In revie wing a plain err or contention, this c ourt first deter mines whether err or occur red at all. See People v. Bannister
, 232 I ll. 2d 52, 65 (2008); People v. Brant
, 394 I ll. App. 3d 663, 677 (2009). ¶ 24 In support of his contention of err or, defe ndant cites People v. Price
, 404 I ll. App. 3d 324 (2010), and P eo

p le v. Criss
, 294 I ll. App. 3d 276 (1998), to argue that the surveillance location privileg e does not apply here beca use it only applies wher e its application protec ts private citizens who allow police to perf orm surveillance on their proper ty and to encour ag e their continued cooper ation. Howeve r, the case law does not support defe ndant’s contention. In Price
, 404 I ll. App. 3d at 332, this court conclude d that to car ry its initial burden of proof of showingthat the privileg e should apply in a g iven ca se, the State must pre sent evidenc e that the location was either : (1) on private proper ty with the permission of the owner , or (2) in a l o ca tion that is useful and whose utilit y would be compromised by disclosure. In the pretria l context, once the State car ries it s bu rd en o f p ro o f, t he defense bear s the burden of
persua sion and can defe at the privileg e by making a “ ‘strong showing that disclosure of the location is materia l or nece ssary to his defe nse and t h at h i s need for the information outweighs the public’s interest in ke eping the location secr et.’ ” Id. (quoting Criss
, 294 I ll. App. 3d at 281). The trial court must balanc e the public interests aga inst defe ndant’s need for disclosure to defe nd himself at t rial. Factors to be considered in this bala n ci n g include but are not limit ed to “the crime charg ed, the possible defe nses, the possible signific ance of the [wit ness’s] testimony
, and other rele vant fac tors.” (Interna l quotation marks omitted.) Id. To make its deter

mination, the t rial court should order an in came ra hearing during which the wit ness m ust reve al t he surve illance location. People v. Knight
, 323 I ll. App. 3d 1117, 1127 (2001). ¶ 25 The State m et its initial burden of proof by prese nting evidenc e during the hearing on defe ndant’s motion that the office rs continue to use the surveillance location and reve aling the location would compromise future investiga tions and office r safe ty

. Moreove r, both trial
court judge s who presided over defe ndant’s cas e c o n d u c ted in came ra hearings with Olivare s and denied the motion to compel disclosure. J udg e Doody
, presiding judge over defe ndant’s trial, conclude d that conce rn for office r and public safe ty outweighed defe ndant’s interest in disclosure and admonished the defe nse of its right to cross-e x amine Olivare s on the weather conditions, lighting
, distance, elevation, and obstructions. J udg e Roberts also conclude d that beca use identity

was not at issue, the privilege would be applied. ¶ 26 Def

endant further argues that withholding the location violated his ri gh t s t o prepa re a defe nse and to cross-e x amine. A criminal defendant h as t he fundamental right t o confr ont the witnesses ag ainst him, including the rig ht to cross-e x amine those witnesses. U.S. Const., amends. VI
, XIV; I ll. Const. 1970, art. I
, § 8; see also Criss
, 294 I ll. App. 3d at 279; Knight
,

-7-323 I ll. App. 3d at 1121-22. “A t ri al co u rt may not deprive a defe ndant of the rig ht to

ques t i o n wi t nesses; howeve r, it may limit the scope of cross-e x amination.” Criss
, 294 I ll. App. 3d at 279. The appellate court deter mines whether the lower court abused its discretion
to the point of resulting i n manifest prejudice in deciding to exclude cer tain testimony

. Id. The State has a qualified privileg e reg arding the disclosure of secr et surveillance locations. Id. at 281. The ne ed for

disclosure is dec ided on a case -by -ca se basis, balanc ing the public interest in keeping the l ocation secret with the defendant’s interest i n p re p aring a defe nse. Id. The defe nd ant must demonstrate the need for disclosure; mere speculation is not sufficie nt. Id. Fur

ther, disclosure of a surveillance location wil l be compelled at trial if the alleg edly privileg ed information is materia l to the issue of guilt. Knight
, 323 I ll. App. 3d at 112 7. A defe ndant’s rig ht to cross-e x amine become s more important in those instances wher e the witness is more c ritical to the g overnme nt’s case

. Id

. ¶ 27 I n t h e prese nt case , defe ndant did not make a strong enough showing that the e x ac t location of the surveillance location was materia l or nece ssary to his defe nse, or that his need outweighed the public interest in keeping the location secr et. Criss
, 294 I ll. App. 3d at 281. Def endant does not claim mistaken identity or an alibi defe nse. When defe ndant stood in front of the liquor store, he was 150 to 200 fee t awa y from Olivare s, but when defe ndant

cr o s s ed the street, he was 50 fee t closer to Olivare s. Olivare s further testified that he wa s using binoc ulars to observe defe ndant and that he never lost sight of def

endant, sa ve whe n a larg e truck momentarily drove past defe ndant. W hen Blas and Mata detained d ef en dant, Olivare s confirme d he was the rig ht person. Olivare s also never lost sight of the tree wher e the narc otics wer e conce aled. He did not leave his surveillance location until afte r defe ndant

was place d in custody and the narc otics wer e rec overe d. See contra Knight
, 323 I ll. App. 3d
at 1120, 1128 (This court found prejudicia l err or when the trial cour t ap p l i ed the nondisclosure privileg e wher e the offe nder’ s identity was contested, the surveillance office r was not usingbinoculars, and both of fice rs admitted to losing sight of the alleg ed offe nder for one to two minutes as they drove f rom the surve illance point.). ¶ 28 Def

ense counsel was allowed sufficie nt latitude to question Oliv a r e s ’ c r e d ib il it

y , e li c itin g from Olivares t hat t here was vehicular and pedestria n traff ic and that Olivare s was parked in the vicinity of Doug las Park. Def ense counsel al so questioned Olivare s on whether the
tree s along the parkway to Doug las Park obst ructe d his view, and inquire d about the route that defe ndant took when he pace d in front of the liquor store. Olivare s radioe d a detailed phy sical description of defe ndant and his location. Bla s and Mat a co nfirmed Olivare s’ testimony when they testified about detaining defe ndant bas ed upon the location and descr iption provided by defe ndant. We cannot say , based upon the evidenc e adduce d at trial, that the trial court abused its discretion in not compelling the disclosure of the surveillance lo ca t i o n

. Be cause the court did not err when it applied the surveillance location privileg e, there could be no plain e rror

. ¶ 29 Finally
, defe ndan t co n t en d s t h at t h e $200 DNA indexi ng fee he was order ed to pay sho u l d b e v ac ated beca

use his DNA was previously collecte d and place d into the I llinois databa se p ursuant to a prior conviction. The I llinois Supreme Court held in People v. Marshall
, 242 I ll. 2d 285, 303 (2011), that the DNA Indexing fee cannot be assessed ag ainst defe ndants whose DNA is alre ady in the I llinois State DNA dat ab as e due to a prior

-8-conviction. See also People v. Leach
, 2011 I L App (1st) 090339, ¶¶ 38-40. The State agree s

that defe ndant was incorre ctly assessed the fee and t h at the fee should be vacated. Acc ording ly , we va cate the $200 fe e. ¶ 30 For

the fore g oing r easons, we aff irm the j udg ment of t he circuit court of Cook County finding defe ndant guilty of possession of more than 1 but less than 15 g rams of heroin with intent to deliver and vaca te the i m p o s ition of the $200 DNA indexi ng fee

. We aff irm the judgme nt in all other aspec ts.

¶ 31 Affir

med in part a

nd vacated in part.

¶ 32 J USTI CE EPS TEI N, spec ially

concur ring

. ¶ 33 Iconcur

with the judgme nt in this c ase beca use I do not believe de fenda nt showed that the trial court err ed in concluding t h at the surveillance location privileg e applied, and there fore there could be no plain error

. I also believe that the t rial court here properly held in came ra examinations to deter mine if the State could meet its initial burden of proof. The problem is that this court does not know what transpire d during the examination. There fore
, I write separ ately beca

use of conce rns I have with the instant case and also to sug g est a proce dure that I believe should be followed by I llinois trial courts once the State invokes the privileg e. ¶ 34 The majority states that “[t] he State met its initial burden of proof by prese nting e vidence during the hearing on defe ndant’s mot ion that the officers c ontinue to use t he surveillance location and reve aling t h e location would compromise future investigations and office r safe ty” (supra ¶ 25). But the rec ord does not contain any of the “eviden ce ” t h at was prese nted. Although the trial court here proper ly held an in came ra examination (two times),
to deter mine if the State could meet its initial burden of proof, there is no transcript and we do not know what transpire d during the examination. I believe the proce dure followed here
prec ludes meaning ful revie w. Also, although the majority co rr ectly notes that, contra ry to defe ndant’s asser

tions, the surv ei l l an ce location privileg e is not restric ted to only those instances wher e private citizens or private proper ty is involved, the State nonetheless must prese nt evide nce to the trial court to show that the surveillance point was “in a location that is useful and whose utilit y would be compromised by disclosure.” People v. Price , 404 I ll. App. 3d 324, 332 (2010). He re , the S tate argued in the t rial court that “the location in this

case is something that is used continually by police o ff i ce rs an d disclosing that would

sever ely threaten t he officer s’ s afe ty and future opera tions of narc otics surveillance of this

are a surrounding Doug las Park, which is where this off ense was committed.” Ag ain, when defe ndant renewe d his motion for disclo s u re o f t he surveillance location, the S tate argued that “in the interest of office r safe ty and the fac t that this is a spot that the office rs continue
to use, a high narc otics are a, and the safe ty of the individuals involved who allowed the office rs to be around and to use this spot, that is an overa rching conce rn here i n t h i s ca s e here .” Ar gument, howeve r, is not evidence

. ¶ 35 Def

endant contends that the surveillance l o ca tion privileg e does not apply in this case wher e the office r observe d the events “fr om a public road in a public park.” Howeve r, I do

-9-not believe that this court is able to conduct a meaning ful revie w of defe ndant’s claim

beca use the rec ord does not contain any of the evidenc e that was prese nted by the State during the in came ra examination of Offic er Olivare s. There is no I llinois case prec isely on point. Theref

ore, I believe that, when the State invokes the surve illance location privilege
, I l l i nois trial courts should follow a proce dure simil ar to that outlined by the New J ers ey Supreme Court in State v. Garcia
, 618 A.2d 326 (N.J. 1993). Simi lar to I llinois
, New J erse y require s the State to “first convince a court that disclosure [of a surveillance location] would compromise an important public interest.” Garcia
, 618 A

. 2 d at 332. New J erse y also require s the trial court to hold an evidentiar y hearing “a t wh i ch the State may attempt to justify application of the privileg e.” Id. Howeve r, as the Garcia court e x plained:
“At that hearing the court should make a seale d rec ord sufficie ntly detailed to f acilitate appellate revie w. Def

ense c ounsel shall not attend the hea ring .” Id

. ¶ 36 In spite of my conce rns, I nonetheless agree with the majority ’s dispositi on of this issue beca use, althoug h the rec ord here does not contain a transcript of the in came ra hearing, the burden was on appellant to prese nt this court with an adequate rec ord. Foutch v. O’Bry ant , 99 I ll. 2d 389, 391 (1984); see also People v. Fair
, 193 I ll. 2d 256, 264 (2000) (ap p l y i ng Foutch in criminal appea l). In the absenc e of a sufficie ntl y complete rec ord, a revie wing
court will presume that the trial court’s ruling had a sufficie nt leg al and fac tual basis and will resolve a ll doubts aga inst the appellant. Foutch , 99 I ll. 2d at 392. ¶ 37 Foutch has been applied in the context of i n ca me r a p ro ce ed i n gs

. In Kamelgard v. American College of Surgeons
, 385 I ll. App. 3d 675, 685 (2008), this court applied Foutch in concluding that we could not deter mine whether the trial cour t was corr ect beca use documents examined by the trial court in came ra wer e not made part of the rec ord, a burden borne by the appe llant. Also, in In re M arriage of Sm ith
, 132 I ll. App. 3d 694, 704 (1985), the appellant contende d that the trial court err ed in denying his reque st to allow his attorney to see opposing counsel’s orig inal time sheets wher e opposing counsel had used the orig inal time she ets at trial to r efr esh his r ecollec tion. The Smith court noted that the trial court had inspected the orig inal time sheets in came ra , co m p ar ed the hours on those sheets with the hours listed on the sheets attache d to the fee petition, and had denied acc ess based on work product privileg e. Id. at 704. This court applied Foutch in reje cting appellant’ s argument. Id. As the Smith court stated, “bec ause the rec ord does not contain the orig inal time sheets, we cannot sa y the trial cour

t erre d in holding that the time shee ts were work produc t.” Id. ¶ 38 Ba sed upon the principles stated in Foutch
, I must presume that the trial court corr ectly conclude d that the State met its initial burden of demonstrating that the surveillance location privileg e applied in the instant case

. Howeve r, in order to allow meaning ful revie w in future

case s and deter

mine if the State actually met its burden, I believe I llinois trial courts should follow the earlier outlined proce dure that wo u l d allow this court to eng ag e in an actua l revie w of the e vidence prese nted by the State duringthe in camera examination.

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