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People v. Hagberg

July 06, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. PATRICK HAGBERG, APPELLANT.


The opinion of the court was delivered by: Justice Rathje

Agenda 8-March 2000.

Following a bench trial, defendant, Patrick Hagberg, was convicted of the unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) and of a traffic violation. For the unlawful possession count, the circuit court of McHenry County sentenced him to 24 months' probation. Defendant appealed only his unlawful possession conviction. The appellate court reversed defendant's conviction and vacated his sentence, holding that (1) a field test cannot be sufficient to sustain a finding that a substance is a controlled substance and (2) the State failed to prove the field test's reliability. 301 Ill. App. 3d 491. We granted the State's petition for leave to appeal.

The State now asks this court to reverse the appellate court and reinstate defendant's conviction. Defendant argues that the evidence was insufficient to sustain his conviction and also cross-appeals, claiming that he did not knowingly and understandingly waive his right to a jury.

BACKGROUND

Only two witnesses, both police officers, testified at defendant's trial. One officer testified regarding a vial of cocaine that the State ultimately failed to prove was defendant's and that did not form the basis of defendant's conviction.

The other officer, William Bukovsky, testified concerning the substance that did form the basis of defendant's conviction. Bukovsky, a patrolman, stated that he stopped defendant because defendant was driving a vehicle with a broken taillight. Through his computer, Bukovsky discovered that defendant's driver's license was suspended. Defendant was arrested for that violation.

Bukovsky took defendant into custody, and defendant rode in the back of Bukovsky's squad car to the police station. The officer inspected the squad car daily and had not had any passengers in the back seat of his car since the last inspection. After defendant left the car, he asked Bukovsky to look into the car because defendant had dropped his wallet. While searching for the wallet, Bukovsky found a "folded-up piece of paper" on the floor of the back seat. Inside the paper was a "white, powdery substance." Bukovsky then asked defendant if it was his, and defendant denied ownership.

Bukovsky performed a field test on the substance. He testified that the test

"is basically several contained little packets with-I guess, the easiest thing to say, it's got a little glass vial in there, you put the substance in there, you shake it, you wait a couple minutes and when it turns a certain color that tells you if it tested positive for cocaine. There are different test kits for different kinds of drugs."

Bukovsky could not remember what color the substance became when it tested positive for cocaine. He recalled that the directions for the test, including the correct color, were listed on the packet. Bukovsky had performed between 20 and 30 field tests but had used the test for cocaine only five or six times. He had also received approximately four to six hours of training in field tests at the University of Illinois Corrections Academy. The State offered no other evidence regarding either the field test that was conducted by Bukovsky or the identification of the substance in the white folded paper. The State stipulated that the substance was never tested in a laboratory.

ANALYSIS

Sufficiency of the Field Test

The State argues that this court should reinstate defendant's conviction because the field test was sufficient to prove that the substance was a controlled substance. Defendant contends that a field test alone is never sufficient to support a conviction for possession. Defendant further argues that, even if a field test can be sufficient, the field test in this case was not.

This court discussed the sufficiency of a field test in People v. Clark, 7 Ill. 2d 163 (1955). In Clark, a police informant, who was a drug addict, told the defendant that he "had some topcoats for which he wanted to get some `stuff.' " Clark, 7 Ill. 2d at 165. The informant went to the defendant's apartment and purchased two sealed packets of powder for $10. Those packets were taken to the police officer, who field tested them. The white powder tested positive for a derivative of opium. Later, ...


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