                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ANTHONY BRITTON, Defendant-Appellant.



District & No.             First District, Fifth Division
                           Docket No. 1-10-2322


Filed                      September 14, 2012
Rehearing denied           October 16, 2012


Held                       On appeal from a conviction for unlawful possession of heroin with intent
(Note: This syllabus       to deliver, the appellate court rejected defendant’s contention that there
constitutes no part of     was a breakdown in the chain of custody of the seized drugs that
the opinion of the court   amounted to reversible error, and the trial court did not abuse its
but has been prepared      discretion in denying his motion seeking disclosure of the surveillance
by the Reporter of         location used by the police.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-21113; the
Review                     Hon. John T. Doody, Jr., Judge, presiding.



Judgment                   Affirmed in part and vacated in part.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Joan
                           F. Frazier, and Lauren N. Bressack, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE HOWSE delivered the judgment of the court, with opinion.
                           Presiding Justice McBride concurred in the judgment and opinion.
                           Justice Epstein specially concurred, with opinion.



                                             OPINION

¶1          A jury found defendant guilty of possession of 1.2 grams of heroin with intent to deliver
        and he was sentenced to 7½ years in prison. On appeal, defendant contends that his
        conviction should be reversed because of a breakdown in the chain of custody of narcotics
        evidence used to sustain the conviction. Defendant also contends that the trial court erred
        when it denied his motion to compel disclosure of the surveillance location utilized to
        observe him engage in two narcotics transactions. Defendant finally contends that he was
        improperly assessed a $200 DNA indexing fee.
¶2          In a pretrial motion and subsequent renewal of that motion, defense counsel moved the
        court to compel disclosure of the surveillance location of Officer Lawrence Olivares, who
        conducted surveillance of defendant on October 15, 2009 beginning at approximately 2:30
        p.m. Each of two trial court judges presiding at different times over defendant’s case heard
        argument on the motion, conducted in camera hearings with Olivares, and subsequently
        denied the motion. After examining Olivares, Judge Mary Roberts concluded that since there
        was no issue of identification, the location would not be disclosed. Judge Thomas Doody
        concluded that the concern for officer and public safety outweighed defendant’s interest in
        disclosure in this case, and also stated that defendant had the right to cross-examine Olivares
        on the weather conditions, lighting, distance, elevation, and obstructions.
¶3          At trial, Olivares testified that on October 15, 2009, at approximately 2:30 p.m., he set
        up a narcotics surveillance in the area of Roosevelt and Whipple, a known narcotics area
        from which he had made previous arrests, along with Officer Mata and Sergeant Blas. He
        was the surveillance officer while Mata and Blas were the enforcement officers. Olivares
        conducted the surveillance from a covert vehicle, from which he observed defendant standing
        in front of a liquor store located at 3034 West Roosevelt Road, at the intersection of
        Roosevelt and Whipple. Defendant walked back and forth in front of the liquor store, but he
        never left the corner of Roosevelt and Whipple.
¶4          Olivares testified about the weather and traffic conditions, explaining that Roosevelt is

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     a busy street with four lanes of traffic and that there was moderate vehicular and foot traffic.
     He testified that it was a clear day and nothing obstructed his view. Olivares was
     approximately 150 to 200 feet away from defendant, on ground level while in his vehicle.
     He used binoculars to observe defendant, and at different times during the surveillance,
     Olivares had both a frontal view and side view of defendant. Defendant was wearing a black
     skull cap, a black jacket with gray sleeves, and blue jeans. Olivares had never seen defendant
     prior to this date.
¶5       Approximately five minutes after Olivares began his surveillance, he observed an
     unknown African-American man approach defendant and give defendant an unknown
     amount of cash, and then the two men walked across Roosevelt to Douglas Park, where
     defendant reached up into a small tree and removed a plastic bag, removed an item from the
     bag, and gave it to the man. Defendant then placed the plastic bag back in the tree. There was
     a blue recycling bin next to the tree. When they crossed the street, the two men were
     approximately 50 feet closer to Olivares. After giving the item to the unknown man,
     defendant walked back across Roosevelt to the liquor store. Olivares could not see what was
     in the plastic bag.
¶6       Olivares continued his surveillance. Approximately 15 minutes later, another unknown
     African-American man approached defendant. The two men crossed Roosevelt, the unknown
     man gave defendant an unknown amount of cash, and defendant reached up into the same
     tree and grabbed the plastic bag, removed an item from it, and gave it to the unknown man.
     Defendant then put the plastic bag back into the tree and the man walked away. Defendant
     walked back to the liquor store. Olivares could not see what the item was that defendant gave
     to the man. Based upon his experience, Olivares believed defendant to have engaged in two
     narcotics transactions.
¶7       Olivares radioed to Blas and Mata and described defendant as “a male black with a black
     skull cap, black jacket and gray sleeves, blue jeans,” and told them defendant was standing
     by the liquor store on Roosevelt and Whipple. Olivares remained in radio contact with Blas
     and Mata until they detained defendant, and Olivares confirmed they had the correct person.
     Olivares then directed Blas to the suspected narcotics. Blas crossed Roosevelt, went to the
     tree next to the blue recycling bin, reached up and removed the plastic bag. Blas notified
     Olivares that the bag contained suspected narcotics.
¶8       Although Olivares acknowledged that he momentarily lost sight of defendant when a big
     truck drove by, Olivares testified that he never lost sight of defendant or the tree. Aside from
     Blas and defendant, no one else went to the immediate area of the tree or touched the plastic
     bag or tree. Olivares could not testify to the specific location of the tree that defendant went
     to on October 15, 2009, because People’s Exhibit 3, a photograph of the area where the tree
     was located, did not have the blue recycling bin in the photograph. Olivares did not take
     photographs or a video recording of the surveillance because he was engaged in a short-term,
     daily investigation, whereas video and photographs are normally taken for long-term
     conspiracy investigations.
¶9       Olivares wrote the arrest report and the case report, and in both reports he indicated that
     four Ziploc bags were recovered. He learned this number was incorrect when the crime lab


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       informed him that five Ziploc bags were inside the sandwich bag.
¶ 10       During cross-examination of Olivares, defense counsel elicited that Olivares was in the
       vicinity of Douglas Park, that cars were parked along Roosevelt, and that Olivares lost sight
       of defendant when trucks passed. Olivares could not see what items were exchanged between
       defendant and the two unknown African-American men who approached him. He did not
       indicate on his original case incident report that the bags had any color or prints, and he
       estimated the weight of the suspect heroin to be 0.4 grams, with an estimated street value of
       $60. On redirect, Olivares clarified that although there were trees in Douglas Park, the trees
       were not blocking his view of defendant or of the tree.
¶ 11       Sergeant Ronald Blas testified that he was in radio contact with Olivares and detained
       defendant based upon the description that Olivares provided. When Blas first saw defendant,
       defendant was crossing Whipple at the intersection of Whipple and Roosevelt. Blas and Mata
       detained defendant and received radio confirmation from Olivares that they detained the
       correct person. Then, Olivares directed Blas to the tree and Blas recovered a clear plastic
       sandwich bag which contained what he believed to be four green and white smaller Ziploc
       bags, each containing suspected heroin. He counted the Ziploc bags without taking them out
       of the sandwich bag. He later learned there were five bags, not four. After radioing to his
       partners that he recovered suspected narcotics, defendant was placed into custody. When they
       went back to the 10th District police station, Blas gave the sandwich bag holding the smaller
       Ziploc bags of suspected heroin to Mata. The narcotics were in Blas’ constant care, custody,
       and control from the time he recovered them from the tree to the time he gave them to Mata.
       On cross-examination, Blas testified that he did not see any hand-to-hand transactions or
       buyers.
¶ 12       Officer Ricardo Mata confirmed Blas’ and Olivares’ testimony regarding detaining
       defendant. Additionally, Mata also testified that while at the station, he conducted a custodial
       search of defendant and recovered $21. Mata then received the narcotics from Blas, and Mata
       inventoried it under number 11818390. Mata counted the Ziplocs bags of narcotics through
       the larger plastic bag, and he believed there were four bags. He did not empty the sandwich
       bag to count the Ziploc bags. Mata identified People’s Exhibit 4(a) as the Ziploc bags of
       suspected narcotics he inventoried in this case on October 15, 2009, and People’s Exhibit
       4(b) as the plastic sandwich bag that held the smaller Ziploc bags.
¶ 13       Mata inventoried the narcotics by placing them in a plastic bag, labeling it with the type
       of suspected narcotics–heroin, describing how the narcotics were packaged, assigning a
       unique inventory number, and heat-sealing the package. Mata testified that at the time of
       inventorying the narcotics and of providing grand jury testimony, he believed there were four
       Ziploc bags, but he later learned there were five. He testified that there was no difference in
       the narcotics he inventoried and the narcotics he testified to.
¶ 14       On cross-examination, Mata admitted that although he did not observe Blas retrieve the
       items from the tree in Douglas Park, the items nevertheless stayed in Blas’ possession until
       they relocated to the station. He also testified that he did not indicate on his inventory report
       that the clear plastic bags had any green markings on them and that he did not indicate any
       markings on the report at all.


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¶ 15        Linda Jenkins, forensic chemist for the Illinois State Police, testified that she recovered
       the narcotics from the Illinois State Police drug chemistry vault in a sealed condition. When
       Jenkins counted the bags, she emptied them out and noticed that there were five Ziploc bags
       and not four, as the inventory report indicated. She sent a discrepancy report to the Chicago
       police department but did not receive a response. Jenkins testified to a reasonable degree of
       scientific certainty that the substance tested positive for heroin and weighed 1.2 grams. On
       cross-examination, Jenkins testified that the items she tested had the same inventory number
       and that the inventory report did not indicate green and yellow markings on the Ziploc bags.
       However, the bags were clear, as the inventory report described.
¶ 16        Following Jenkins’ testimony, the State moved to admit People’s Exhibits 4(a) and 4(b),
       but defense counsel objected, arguing that the State failed to lay a proper foundation. The
       trial court admitted the evidence over defendant’s objection. After the State rested, the
       defense moved for a directed finding, which the trial court summarily denied. The jury found
       defendant guilty of possession of heroin with intent to deliver. In defendant’s motion for a
       new trial, defense counsel argued that the trial court erroneously admitted People’s Exhibit
       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. Defendant was sentenced to 7½ years of
       imprisonment. Among other fines and fees, the trial court imposed a $200 DNA indexing
       fee.
¶ 17        On appeal, defendant contends, first, that his conviction for possession with intent to
       deliver should be reversed due to a breakdown in the chain of custody for the narcotics.
       When reviewing the trial court’s ruling on the sufficiency of a chain of custody, courts of
       review will reverse the trial court’s ruling only upon a finding of abuse of discretion. People
       v. Howard, 387 Ill. App. 3d 997, 1004 (2009).
¶ 18        As an initial matter, in order to convict a defendant of unlawful possession of a controlled
       substance, the State must prove that the material recovered from the defendant is in fact a
       controlled substance. People v. Woods, 214 Ill. 2d 455, 466 (2005). In narcotics cases, in
       which the physical evidence is not readily identifiable or may be susceptible to tampering,
       contamination, or exchange, the State must establish a chain of custody. Id. at 467. The State
       establishes a prima facie showing of a sufficient chain of custody for narcotics by
       establishing that reasonable protective measures were taken to ensure that the evidence has
       not been tampered with, substituted or altered between the time of seizure and forensic
       testing. Id. at 468. Once the State makes its prima facie showing, the burden shifts to the
       defendant to produce evidence of actual tampering, alteration or substitution. The burden
       then again shifts to the State to rebut the defendant’s claim. Id. The defendant is not required
       to show evidence of actual tampering or substitution unless the State first establishes its
       prima facie showing that it is improbable that the evidence was compromised. Id. If there has
       been no evidence that the evidence was compromised, the State does not need to exclude
       every possibility of tampering or contamination. People v. Lundy, 334 Ill. App. 3d 819, 826
       (2002) (quoting People v. Bynum, 257 Ill. App. 3d 502, 510 (1994)). It need only show that
       it took reasonable protective measures after the evidence was seized and that it is unlikely
       that the evidence has been altered. Id.
¶ 19        The State made a prima facie showing of a sufficient chain of custody. The disparity

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       between the number of Ziploc bags that Blas recovered from the tree and the number tested
       by Jenkins was a single bag. The testifying officers all admitted to being mistaken about the
       number of packets and admitted that they did not empty the contents of the plastic sandwich
       bag to count the individual Ziploc bags. There is no evidence in the record that Olivares
       weighed the bags on a scale. Rather, Olivares testified that Mata merely showed him the
       evidence. Further, both the arrest and incident reports he prepared indicate that Olivares
       estimated the weight to be 0.4 grams.
¶ 20        Further, the State presented sufficient evidence of handling and safekeeping between
       Mata and Jenkins. Mata inventoried the narcotics by placing them in a plastic bag, labeling
       it as heroin, the type of suspected narcotics, describing the packaging as clear bags, assigning
       it a unique inventory number, and heat-sealing the package. Jenkins received the evidence
       in a heat-sealed condition under the same inventory number. Although the inventory report
       did not indicate that the Ziploc bags had green and yellow markings, Jenkins testified that
       the bags were nevertheless clear, as the inventory report described. The fact that Olivares,
       Mata, and Blas mistakenly counted four Ziplocs without taking the bags out of the plastic
       sandwich bag to individually count them, and Jenkins did in fact empty the contents to find
       five bags, does not amount to such a breakdown in the chain of custody that it warrants a
       finding of abuse of discretion for the trial court’s accepting People’s Exhibits 4(a) and 4(b)
       into evidence.
¶ 21        Defendant relies on People v. Terry, 211 Ill. App. 3d 968 (1991), and People v. Gibson,
       287 Ill. App. 3d 878 (1997), to support his argument that there was a complete breakdown
       in the chain of custody, thus warranting this court’s reversal of defendant’s conviction on the
       basis of the State’s failure to prove the element of possession. However, both of defendant’s
       cited cases are distinguishable. The disparities in Terry are significantly different from the
       present case because not only was there a 10-packet disparity in the number of packets
       recovered versus the number tested in Terry, but also the description of the actual substance
       was significantly different. Terry, 211 Ill. App. 3d at 972-73. In Terry, the officer recovered
       and inventoried white powder, while the forensic chemist tested a substance “saturated in a
       yellow uremic substance.” Id. at 973. Finally, the inventorying officer estimated the weight
       to be 8 grams, while the actual weight established by the forensic chemist was 12 grams. Id.
¶ 22        In Gibson, this court held that the State failed to prove a sufficiently complete chain of
       custody where the inventorying officer weighed narcotics and found the narcotics to weigh
       approximately 2 grams, but the stipulated testimony of the forensic chemist found the
       narcotics to weigh 9.3 grams, an almost five-fold increase. Gibson, 287 Ill. App. 3d at 882.
       Additionally, unlike the evidence of handling and safekeeping between Blas, Mata, and
       Jenkins presented in the present case, there was also no evidence regarding handling and
       safekeeping between the inventorying officer and the chemist in Gibson, nor was there
       evidence of the procedures the inventorying officer employed to ensure the safekeeping of
       the narcotics. Id. Based upon the foregoing, we cannot conclude that the trial court abused
       its discretion in ruling the State presented sufficient evidence of a proper chain of custody
       for People’s Exhibits 4(a) and 4(b), and in admitting those exhibits.
¶ 23        Defendant next contends that the trial court erred when it denied his motion to compel
       disclosure of Olivares’ surveillance location. Defendant did not raise this issue in his posttrial

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       motion, thus it was waived. People v. Enoch, 122 Ill. 2d 176 (1988) (in order to preserve an
       error for appeal, the error must be objected to and included in the posttrial motion).
       Defendant invokes the plain error doctrine to bypass the principles of waiver. The plain error
       doctrine allows a reviewing court to consider an unpreserved error when a clear or obvious
       error occurred and (1) the evidence is closely balanced or (2) the error is so serious that it
       affects the fairness of defendant’s trial and challenges the integrity of the judicial process.
       People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); see also Woods, 214 Ill. 2d at 471-72. In
       reviewing a plain error contention, this court first determines whether error occurred at all.
       See People v. Bannister, 232 Ill. 2d 52, 65 (2008); People v. Brant, 394 Ill. App. 3d 663, 677
       (2009).
¶ 24        In support of his contention of error, defendant cites People v. Price, 404 Ill. App. 3d 324
       (2010), and People v. Criss, 294 Ill. App. 3d 276 (1998), to argue that the surveillance
       location privilege does not apply here because it only applies where its application protects
       private citizens who allow police to perform surveillance on their property and to encourage
       their continued cooperation. However, the case law does not support defendant’s contention.
       In Price, 404 Ill. App. 3d at 332, this court concluded that to carry its initial burden of proof
       of showing that the privilege should apply in a given case, the State must present evidence
       that the location was either: (1) on private property with the permission of the owner, or (2)
       in a location that is useful and whose utility would be compromised by disclosure. In the
       pretrial context, once the State carries its burden of proof, the defense bears the burden of
       persuasion and can defeat the privilege by making a “ ‘strong showing that disclosure of the
       location is material or necessary to his defense and that his need for the information
       outweighs the public’s interest in keeping the location secret.’ ” Id. (quoting Criss, 294 Ill.
       App. 3d at 281). The trial court must balance the public interests against defendant’s need
       for disclosure to defend himself at trial. Factors to be considered in this balancing include
       but are not limited to “the crime charged, the possible defenses, the possible significance of
       the [witness’s] testimony, and other relevant factors.” (Internal quotation marks omitted.) Id.
       To make its determination, the trial court should order an in camera hearing during which
       the witness must reveal the surveillance location. People v. Knight, 323 Ill. App. 3d 1117,
       1127 (2001).
¶ 25        The State met its initial burden of proof by presenting evidence during the hearing on
       defendant’s motion that the officers continue to use the surveillance location and revealing
       the location would compromise future investigations and officer safety. Moreover, both trial
       court judges who presided over defendant’s case conducted in camera hearings with Olivares
       and denied the motion to compel disclosure. Judge Doody, presiding judge over defendant’s
       trial, concluded that concern for officer and public safety outweighed defendant’s interest in
       disclosure and admonished the defense of its right to cross-examine Olivares on the weather
       conditions, lighting, distance, elevation, and obstructions. Judge Roberts also concluded that
       because identity was not at issue, the privilege would be applied.
¶ 26        Defendant further argues that withholding the location violated his rights to prepare a
       defense and to cross-examine. A criminal defendant has the fundamental right to confront
       the witnesses against him, including the right to cross-examine those witnesses. U.S. Const.,
       amends. VI, XIV; Ill. Const. 1970, art. I, § 8; see also Criss, 294 Ill. App. 3d at 279; Knight,

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       323 Ill. App. 3d at 1121-22. “A trial court may not deprive a defendant of the right to
       question witnesses; however, it may limit the scope of cross-examination.” Criss, 294 Ill.
       App. 3d at 279. The appellate court determines whether the lower court abused its discretion
       to the point of resulting in manifest prejudice in deciding to exclude certain testimony. Id.
       The State has a qualified privilege regarding the disclosure of secret surveillance locations.
       Id. at 281. The need for disclosure is decided on a case-by-case basis, balancing the public
       interest in keeping the location secret with the defendant’s interest in preparing a defense.
       Id. The defendant must demonstrate the need for disclosure; mere speculation is not
       sufficient. Id. Further, disclosure of a surveillance location will be compelled at trial if the
       allegedly privileged information is material to the issue of guilt. Knight, 323 Ill. App. 3d at
       1127. A defendant’s right to cross-examine becomes more important in those instances
       where the witness is more critical to the government’s case. Id.
¶ 27       In the present case, defendant did not make a strong enough showing that the exact
       location of the surveillance location was material or necessary to his defense, or that his need
       outweighed the public interest in keeping the location secret. Criss, 294 Ill. App. 3d at 281.
       Defendant does not claim mistaken identity or an alibi defense. When defendant stood in
       front of the liquor store, he was 150 to 200 feet away from Olivares, but when defendant
       crossed the street, he was 50 feet closer to Olivares. Olivares further testified that he was
       using binoculars to observe defendant and that he never lost sight of defendant, save when
       a large truck momentarily drove past defendant. When Blas and Mata detained defendant,
       Olivares confirmed he was the right person. Olivares also never lost sight of the tree where
       the narcotics were concealed. He did not leave his surveillance location until after defendant
       was placed in custody and the narcotics were recovered. See contra Knight, 323 Ill. App. 3d
       at 1120, 1128 (This court found prejudicial error when the trial court applied the
       nondisclosure privilege where the offender’s identity was contested, the surveillance officer
       was not using binoculars, and both officers admitted to losing sight of the alleged offender
       for one to two minutes as they drove from the surveillance point.).
¶ 28       Defense counsel was allowed sufficient latitude to question Olivares’ credibility, eliciting
       from Olivares that there was vehicular and pedestrian traffic and that Olivares was parked
       in the vicinity of Douglas Park. Defense counsel also questioned Olivares on whether the
       trees along the parkway to Douglas Park obstructed his view, and inquired about the route
       that defendant took when he paced in front of the liquor store. Olivares radioed a detailed
       physical description of defendant and his location. Blas and Mata confirmed Olivares’
       testimony when they testified about detaining defendant based upon the location and
       description provided by defendant. We cannot say, based upon the evidence adduced at trial,
       that the trial court abused its discretion in not compelling the disclosure of the surveillance
       location. Because the court did not err when it applied the surveillance location privilege,
       there could be no plain error.
¶ 29       Finally, defendant contends that the $200 DNA indexing fee he was ordered to pay
       should be vacated because his DNA was previously collected and placed into the Illinois
       database pursuant to a prior conviction. The Illinois Supreme Court held in People v.
       Marshall, 242 Ill. 2d 285, 303 (2011), that the DNA Indexing fee cannot be assessed against
       defendants whose DNA is already in the Illinois State DNA database due to a prior

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       conviction. See also People v. Leach, 2011 IL App (1st) 090339, ¶¶ 38-40. The State agrees
       that defendant was incorrectly assessed the fee and that the fee should be vacated.
       Accordingly, we vacate the $200 fee.
¶ 30       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County
       finding defendant guilty of possession of more than 1 but less than 15 grams of heroin with
       intent to deliver and vacate the imposition of the $200 DNA indexing fee. We affirm the
       judgment in all other aspects.

¶ 31       Affirmed in part and vacated in part.

¶ 32       JUSTICE EPSTEIN, specially concurring.
¶ 33       I concur with the judgment in this case because I do not believe defendant showed that
       the trial court erred in concluding that the surveillance location privilege applied, and
       therefore there could be no plain error. I also believe that the trial court here properly held
       in camera examinations to determine if the State could meet its initial burden of proof. The
       problem is that this court does not know what transpired during the examination. Therefore,
       I write separately because of concerns I have with the instant case and also to suggest a
       procedure that I believe should be followed by Illinois trial courts once the State invokes the
       privilege.
¶ 34       The majority states that “[t]he State met its initial burden of proof by presenting evidence
       during the hearing on defendant’s motion that the officers continue to use the surveillance
       location and revealing the location would compromise future investigations and officer
       safety” (supra ¶ 25). But the record does not contain any of the “evidence” that was
       presented. Although the trial court here properly held an in camera examination (two times),
       to determine if the State could meet its initial burden of proof, there is no transcript and we
       do not know what transpired during the examination. I believe the procedure followed here
       precludes meaningful review. Also, although the majority correctly notes that, contrary to
       defendant’s assertions, the surveillance location privilege is not restricted to only those
       instances where private citizens or private property is involved, the State nonetheless must
       present evidence to the trial court to show that the surveillance point was “in a location that
       is useful and whose utility would be compromised by disclosure.” People v. Price, 404 Ill.
       App. 3d 324, 332 (2010). Here, the State argued in the trial court that “the location in this
       case is something that is used continually by police officers and disclosing that would
       severely threaten the officers’ safety and future operations of narcotics surveillance of this
       area surrounding Douglas Park, which is where this offense was committed.” Again, when
       defendant renewed his motion for disclosure of the surveillance location, the State argued
       that “in the interest of officer safety and the fact that this is a spot that the officers continue
       to use, a high narcotics area, and the safety of the individuals involved who allowed the
       officers to be around and to use this spot, that is an overarching concern here in this case
       here.” Argument, however, is not evidence.
¶ 35       Defendant contends that the surveillance location privilege does not apply in this case
       where the officer observed the events “from a public road in a public park.” However, I do

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       not believe that this court is able to conduct a meaningful review of defendant’s claim
       because the record does not contain any of the evidence that was presented by the State
       during the in camera examination of Officer Olivares. There is no Illinois case precisely on
       point. Therefore, I believe that, when the State invokes the surveillance location privilege,
       Illinois trial courts should follow a procedure similar to that outlined by the New Jersey
       Supreme Court in State v. Garcia, 618 A.2d 326 (N.J. 1993). Similar to Illinois, New Jersey
       requires the State to “first convince a court that disclosure [of a surveillance location] would
       compromise an important public interest.” Garcia, 618 A.2d at 332. New Jersey also requires
       the trial court to hold an evidentiary hearing “at which the State may attempt to justify
       application of the privilege.” Id. However, as the Garcia court explained:
            “At that hearing the court should make a sealed record sufficiently detailed to facilitate
            appellate review. Defense counsel shall not attend the hearing.” Id.
¶ 36        In spite of my concerns, I nonetheless agree with the majority’s disposition of this issue
       because, although the record here does not contain a transcript of the in camera hearing, the
       burden was on appellant to present this court with an adequate record. Foutch v. O’Bryant,
       99 Ill. 2d 389, 391 (1984); see also People v. Fair, 193 Ill. 2d 256, 264 (2000) (applying
       Foutch in criminal appeal). In the absence of a sufficiently complete record, a reviewing
       court will presume that the trial court’s ruling had a sufficient legal and factual basis and will
       resolve all doubts against the appellant. Foutch, 99 Ill. 2d at 392.
¶ 37        Foutch has been applied in the context of in camera proceedings. In Kamelgard v.
       American College of Surgeons, 385 Ill. App. 3d 675, 685 (2008), this court applied Foutch
       in concluding that we could not determine whether the trial court was correct because
       documents examined by the trial court in camera were not made part of the record, a burden
       borne by the appellant. Also, in In re Marriage of Smith, 132 Ill. App. 3d 694, 704 (1985),
       the appellant contended that the trial court erred in denying his request to allow his attorney
       to see opposing counsel’s original time sheets where opposing counsel had used the original
       time sheets at trial to refresh his recollection. The Smith court noted that the trial court had
       inspected the original time sheets in camera, compared the hours on those sheets with the
       hours listed on the sheets attached to the fee petition, and had denied access based on work
       product privilege. Id. at 704. This court applied Foutch in rejecting appellant’s argument. Id.
       As the Smith court stated, “because the record does not contain the original time sheets, we
       cannot say the trial court erred in holding that the time sheets were work product.” Id.
¶ 38        Based upon the principles stated in Foutch, I must presume that the trial court correctly
       concluded that the State met its initial burden of demonstrating that the surveillance location
       privilege applied in the instant case. However, in order to allow meaningful review in future
       cases and determine if the State actually met its burden, I believe Illinois trial courts should
       follow the earlier outlined procedure that would allow this court to engage in an actual
       review of the evidence presented by the State during the in camera examination.




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