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04/18/89 Gregory Williamson, v. the Police Board of the

April 18, 1989

GREGORY WILLIAMSON, PLAINTIFF-APPELLEE

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 1058, 182 Ill. App. 3d 304, 130 Ill. Dec. 729 1989.IL.544

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant appeals from an order reversing a Chicago police board decision discharging plaintiff from the police department, arguing that the trial court abused its discretion in finding that defendant had failed to establish a sufficient chain of custody.

On February 6, 1986, Luana Gooden, plaintiff's girlfriend, called the Chicago police department and reported that plaintiff smoked marijuana both on and off duty. The next day, after talking with plaintiff, she attempted to withdraw her complaint. On February 13, 1986, after speaking with plaintiff again and under his direction, she spoke with Sergeant Hovland at Internal Affairs and told him that she laced plaintiff's tea with marijuana. Upon being told that she could be charged with aggravated battery, Gooden recanted her account regarding the tea. On February 19, 1986, Gooden returned to Internal Affairs and told Hovland that on February 14 plaintiff had come to her home and threatened her with a gun in an attempt to get her to sign a letter retracting her complaint against him. She also claimed that on February 18 plaintiff had come to her home and that while she sat outside in his car with him, he had tried to choke her for her refusal to sign an affidavit saying that she put marijuana in his tea. On cross-examination, she admitted that she had lied when she said that plaintiff had threatened her with a gun.

Internal Affairs investigated Gooden's allegation of drug abuse, and on February 11, 1986, police agent Wallace contacted plaintiff at his district. Plaintiff, Wallace and Hovland reported to the medical service section, where plaintiff was given a "Notification of Charges/Allegations" form. Officer Victor Miktal, who was sitting behind a desk in the laboratory, took a plastic cup from a sleeve of plastic cups, marked it with the next available drug screen number, gave it to plaintiff and directed him to the washroom. Hovland and Wallace watched as plaintiff urinated into the cup. Plaintiff then carried the cup to Miktal's desk and, while plaintiff sat in a chair adjacent to the desk, Miktal poured the contents of the cup into a prenumbered, labelled bottle, which he sealed with red evidence tape.

Plaintiff then completed part I of a drug screen specimen affidavit, in which he swore that on February 11, 1986, at 11:36, he urinated into a cup with the number 1159 written on its side; that he gave the cup to Miktal; that he watched Miktal pour the contents of the cup into a bottle with the number DS861159 printed on its side, close the top with a cap numbered 1159, and seal the bottle across the cap and down both sides with red evidence tape. Miktal, Hovland and Wallace all swore to witnessing the same thing. Later, at the police board hearing plaintiff denied watching Miktal seal the bottle.

Miktal placed the sealed bottle in the medical services section refrigerator, to which only two officers and their supervisor had access. Miktal then completed part II of the drug screen specimen affidavit, swearing that he placed specimen number DS861159 in the refrigerator at 11:40. At 1 p.m., Miktal watched Sergeant Laffey take plaintiff's specimen from the refrigerator. Part III of the drug screen specimen affidavit bears the signature "T. Laffey," attesting to the fact that he removed specimen number DS861159 to the American Institute of Drug Detection (hereinafter AIDD).

Vicky Zarazinski, who is responsible for keeping records of incoming drug test requisitions at AIDD, testified regarding the drug test requisition form for specimen number DS861159. The purpose of the form is to record when a specimen bottle is received, its condition and whether there were any irregularities with the incoming specimen. It also provides a matching accession number, which is used to identify the specimen. Specimen number DS861159 was given accession number DD-26345. There were no irregularities recorded on the requisition form. Zarazinski placed the requisition form in a locked filing cabinet, the keys to which only she, the president of AIDD and the laboratory supervisor had.

James Walsh testified that he took the specimen out of a locked refrigerator at AIDD and checked to ensure that the seal was intact. He then broke the seal, and when he ran an EMIT test on the urine for the presence of drugs, the sample tested positive for THC, the active component of marijuana. He marked the lid with the accession number and noted on the bottle that the sample was presumptively positive, and then put the specimen into a box which would be put into a locked refrigerator for later confirmation of the positive result. On cross-examination, he stated that he did not know who sealed the specimen or who originally put the specimen in the refrigerator. He also stated that there had been occasions when the test equipment reported false positives.

Joyce Mah, the only other person to have access to the refrigerator, performed a gas chromatography mass spectrometry which confirmed that the specimen was positive for marijuana. She then placed the sample in a locked, frozen storage. When she took the specimen from the refrigerator the bottle was not sealed and she did not know if anyone had tampered with it; however, she testified that there was "very limited access" to the refrigerator and she did not see anyone tamper with the specimen.

Police Superintendent LeRoy Martin filed charges against plaintiff with the Chicago police board for ...


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