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February 22, 1994


Appeal from the Circuit Court of Kane County. No. 91-MR-436. Honorable James F. Quetsch, Judge, Presiding.

Inglis, Geiger, Bowman

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

John Kimery (claimant) appeals a trial court order forfeiting his 1982 Ford Mustang pursuant to the Drug Asset Forfeiture Procedure Act (the Act) (725 ILCS 150/1 et seq. (West 1992)). Claimant argues on appeal that: (1) the trial court erred in allowing a police officer who was involved in seizing claimant's car to testify as an expert witness, as the State violated Supreme Court Rule 220 (134 Ill. 2d R. 220) by failing to disclose before trial that the officer would be testifying as an expert; (2) the trial court erred in finding that claimant's car was subject to forfeiture; (3) the case was not tried within the statutory time limit; and (4) the Act violates claimant's right to a jury trial in a civil case (see U.S. Const., amend. VII; Ill. Const. 1970, art. I, § 13). We affirm.

On November 18, 1991, the State filed a complaint for forfeiture alleging that, on October 6, 1991, the vehicle at issue was used to facilitate a cocaine transaction in Aurora. On February 4, 1992, claimant filed his second amended answer to the complaint. He stated that he was the owner of the Mustang. He denied that the car was used in a drug transaction.

On February 13, 1992, the cause was continued, on the parties' motion, to April 14, 1992. On April 6, 1992, the State moved to strike the trial date because one of its witnesses, Officer Mike Langston, would not be available to testify on April 14. Over claimant's objection, the trial court granted the motion. The cause proceeded to a bench trial on May 26, 1992.

The State's first witness was Aurora police officer Thomas Kearbey, who was part of a team assigned to a drug detail on Kane Street on October 6, 1991. Also participating were Officers Langston, Carter, Edwards, Rigg, and Sanchez. Officer Langston was doing a survey of drug activity on the 1100 block of Kane Street; the other officers were parked outside the area. At about 9:45 p.m., Langston called the other officers into the area. Kearbey pulled up behind the Mustang. Edwards removed claimant (the driver), and Larry Harris (the passenger) from the Mustang.

Officer Edwards patted down claimant and found nothing on claimant's person. However, he noticed a hole in claimant's pants pocket. Officer Carter found a small plastic bag by claimant's foot. Carter gave Kearbey the plastic bag. When Kearbey returned to the police station, he gave the bag to Officer Langston, who field-tested the contents.

Officer Langston testified that in his 10 years with the Aurora police department, he had been involved in about 100 narcotics-related arrests. He was familiar with the appearance of cocaine and how cocaine was packaged for sale. He had seen people ingest cocaine many times. Langston had special police training in narcotics investigation, including administration of field tests. He had used the Scott Reagent Field Test about 50 times; each time, lab tests confirmed the result of this test.

On October 6, 1991, Langston headed up the plainclothes investigation of the 1100 block of Kane Street. Kane Street is a two-lane, east-west road. It has sidewalks on both sides, and there are streetlights about every 75 to 80 yards. On the north side of Kane are apartment buildings, houses, and a lodge. At about 9:15 p.m., Langston took his post on the roof of a duplex at 1119 Kane. He was about 14 feet above the ground and 35 feet from the south curb. There was a streetlight about 20 feet from him.

At 9:40 p.m., Langston, using binoculars, saw a 1982 Ford Mustang occupied by claimant drive slowly west through the 1100 block of Kane. The car went past Langston, turned around in a driveway, and came back east on Kane. The car soon turned south onto Loucks, north on Trask and east on Kane, stopping along the south curb directly in front of 1119 Kane. Officer Langston was about 30 or 35 feet away. Langston looked through the passenger's window and saw the driver. A short time later, a man who had been in front of 1115 Kane walked up to the car and spoke to claimant. After a few more minutes, a man Langston recognized as Larry Harris walked into the area. Claimant gave a hand signal. Harris approached the car and spoke with claimant.

Langston heard Harris tell claimant Harris could possibly get claimant "a sixteenth." Harris walked away and met with the first man, who had just pulled up in a Buick. The two men entered the house at 1115 Kane. The first man stayed inside. After five minutes, Harris exited and walked to the passenger side of claimant's car. Claimant unlocked the door and Harris got in. After about a minute, Harris gave claimant what appeared to be a small white bag. Claimant untied the bag, appeared to remove something, and retied the bag. He reached inside his jacket and removed something, then brought his hands together and raised them up to his face.

After Langston disclosed this information on direct examination, the prosecutor asked him if claimant's actions were consistent with the possible ingestion of cocaine. Claimant's attorney objected, arguing that Langston had not been qualified as an expert witness. After the court overruled the objection, claimant's counsel argued that Langston's expert testimony should be barred because the State had not disclosed the expert witness as required by Rule 220. The court overruled the objection.

Langston then testified that after he saw claimant hand Harris what appeared to be paper money, Langston signaled the other officers to arrest claimant and Harris. After the men were arrested and the officers returned to the police station, Officer Kearbey gave Langston the plastic bag claimant had taken from Harris. Langston field-tested the substance in the package; it tested positive for cocaine. Langston acknowledged the field test he performed was "non-specific," that is, the test proved only that the substance in the bag could be cocaine. The test alone could not conclusively ...

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