                                  Illinois Official Reports

                                          Appellate Court



                              People v. Reed, 2013 IL App (1st) 113465




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



District & No.               First District, Third Division
                             Docket No. 1-11-3465


Filed                        December 31, 2013



Held                         On appeal from defendant’s conviction for unlawful possession of a
(Note: This syllabus         controlled substance, the appellate court rejected defendant’s
constitutes no part of the   contention that the trial court improperly restricted his sixth
opinion of the court but     amendment right to confront the evidence against him by precluding
has been prepared by the     the disclosure of the surveillance location of the only officer who saw
Reporter of Decisions        defendant possess narcotics and engage in three drug transactions,
for the convenience of       since the trial court conducted an in camera interview of the officer
the reader.)                 involved in the surveillance and concluded that an ongoing
                             investigation warranted preserving the secrecy of the officer’s exact
                             location, and there was no indication that the trial court abused its
                             discretion in applying the surveillance location privilege to deny
                             disclosure.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-17863; the
Review                       Hon. Maura Slattery Boyle, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier and Caroline E. Bourland, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Joseph Carlson,
                              Assistant State’s Attorney, of counsel), for the People.



     Panel                    PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                              with opinion.
                              Justices Neville and Mason concurred in the judgment and opinion.


                                             OPINION

¶1         Defendant Belton Reed was convicted of possession of a controlled substance, after a
       bench trial. The trial court sentenced Reed to a five-year extended prison term. On appeal,
       Reed contends the trial court impermissibly restricted Reed’s sixth amendment right to
       confront the evidence against him by denying disclosure of the surveillance location of the
       only officer who saw Reed possess the narcotics. We affirm. Our careful review of the record
       does not establish that the trial court abused its discretion in precluding disclosure of the
       officer’s surveillance location.

¶2                                            Background
¶3         Reed filed a pretrial motion for disclosure of Chicago police officer Daniel Honda’s
       surveillance location, alleging that the location was material to the issue of his guilt and that
       the case against him turned almost entirely on the officer’s testimony. The assistant State’s
       Attorney informed the court that the officer was in court, that he provided distances, and that
       he did not wish to disclose the exact location where he had been. Defense counsel indicated
       that he expected greater specificity in terms of distance and direction. The trial court then
       conducted an in camera interview of the surveillance officer, which was not transcribed, and
       denied the motion to disclose surveillance based on the “ongoing investigation.”
¶4         The State’s trial evidence established that at around 11 a.m. on September 6, 2010, Officer
       Honda, from his vantage point in the area of Douglas Park, in the vicinity of Roosevelt Road
       and Whipple Street, observed Reed engage in three transactions. Officer Honda’s surveillance
       location was slightly elevated and about 100 feet from Reed. In the morning daylight, Officer
       Honda had an unobstructed view of Reed and watched as Reed engaged in three separate
       transactions at about 3034 West Roosevelt Road. One of the individuals who engaged in the
       transactions was a white male, and two were black males.
¶5         During each transaction, an individual approached Reed on foot and gave an unknown
       amount of cash to him. Reed placed the cash in the right pocket of his shorts. Officer Honda
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     could not see the denominations of the cash. After Reed placed the cash in his clothing, he
     directed the individual to cross Roosevelt Road by pointing with his finger. The individual then
     relocated to the sidewalk on the other side of the street at about 3033. Officer Honda’s view of
     the individuals was unobstructed. Reed walked over to a grassy area near the sidewalk at the
     address of 1147 South Whipple Street, walked to the curb, lifted the weeds that covered the
     curb, and retrieved a clear plastic bag from underneath the weeds. When Reed went to the
     grassy area, he remained within Officer Honda’s sight. Nothing obstructed Officer Honda’s
     view of Reed when Reed lifted the patch of weeds. Reed removed an item from the clear
     plastic bag, placed the bag back underneath the weeds, relocated across the street, and gave the
     item to the individual who was waiting. The individual then left the area. The three transactions
     took a total of about 20 to 25 minutes. While Officer Honda was on surveillance, he did not see
     anyone else go to the grassy area at 1147 South Whipple Street.
¶6       After the third transaction, Reed walked back and forth from the front of a store at around
     3034 West Roosevelt Road to the Whipple Street side of the store. Officer Honda radioed his
     partner, Officer Acevedo, and provided a full description of his observations and of Reed.
     Enforcement was asked to detain Reed. Officer Honda left his surveillance point and relocated
     to where Officer Acevedo and Reed were. The officers had a conversation and Officer Honda
     confirmed Reed’s identity as the offender. Officer Honda believed that the three transactions
     were narcotics transactions. Officer Honda directed Officer Acevedo to the curb at 1147 South
     Whipple Street, and Officer Acevedo recovered a clear plastic bag containing 5 small Ziploc
     bags, each of which contained 2 tinfoil packets for a total of 10 tinfoil packets.
¶7       During cross-examination, Officer Honda testified that his distance from Reed was about
     100 feet when Reed relocated to 1147 South Whipple Street. At a preliminary hearing on
     September 30, 2010, Officer Honda testified that he was about 50 to 100 feet from Reed when
     defendant was at the area of the weeds. There was no traffic control device at Roosevelt and
     Whipple and there were no buildings around 3033 West Roosevelt. There was just a park with
     a lot of trees. Other than that, it was an open area. The drugs were nowhere near the tree shown
     in a photograph of the area of 1147 South Whipple, which was not included in the record on
     appeal. Only Officers Honda and Acevedo were out there, but, in his reports, Officer Honda
     referred to multiple enforcement officers. The parties stipulated that during a preliminary
     hearing on September 30, 2010, Officer Honda testified that he provided a full description to
     enforcement officers, who arrived on the scene shortly after and detained Reed. Officer Honda
     did not recall from which direction any of the unknown individuals had come, nor did he recall
     in which direction any of them had left. Officer Acevedo lifted the weeds and retrieved the
     bags. At the preliminary hearing, Officer Honda testified that he lifted the weeds. Officer
     Honda could not identify whatever Reed gave to the unknown individuals, the amount of
     cash tendered between the individuals and Reed, or any further description of the unknown
     black males or any information about the unknown white male, beyond their race and gender.
     The bag that Officer Honda observed was not visible except when Reed lifted the patch of
     weeds. No drugs were found on Reed’s person. Officer Honda observed Officer Acevedo
     approach Reed, and Reed did not run or attempt to flee. Reed was on the scene when Officer
     Honda arrived. After Officer Acevedo recovered the plastic bags from underneath the weeds at
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       1147 South Whipple Street, Officer Honda saw that the bags were clear plastic Ziploc bags,
       each one containing two tinfoil packets. He believed that there was “some blue Superman
       imprint,” which he did not mention in his reports.
¶8         During redirect examination, Officer Honda testified that he did hear someone near Reed
       yelling out “blows” or “rocks” at the location before the transactions, but he observed only
       Reed engaging in hand-to-hand transactions there. There were a lot of trees in Douglas Park,
       but trees did not obstruct Officer Honda’s view of Reed and the unknown individuals.
¶9         Chicago police officer Jason Acevedo testified that he was the enforcement officer and
       maintained radio communications with Officer Honda during the surveillance. Officer Honda
       indicated that Officer Acevedo should detain someone, and Officer Honda directed him to the
       area of 3034 West Roosevelt, where there were overgrown weeds at the curb. From there,
       Officer Acevedo recovered one clear plastic bag containing five Ziploc bags, each of which
       contained two tinfoil packets of a white powdered substance suspected to be heroin. Officer
       Acevedo identified Reed in court as the individual who was detained. Officer Acevedo
       participated in his detention. Officer Acevedo gave an inventory bag containing the narcotics
       to Officer Wrigley, the inventory officer.
¶ 10       Chicago police officer John Wrigley testified that he inventoried the items of suspected
       narcotics that Officer Acevedo had recovered, and the $71 that Officer Beyna had recovered
       from Reed’s person.
¶ 11       The parties stipulated that Kimberly Blood, an Illinois State Police forensic chemist, would
       testify that she tested the substance in 6 of the 10 plastic bags, that those 6 bags proved positive
       for 1.1 grams of heroin, and that if she had tested the contents of the remaining 4 bags, the total
       weight would have been 1.8 grams.
¶ 12       In finding Reed guilty of possession of a controlled substance, the court observed that
       Officer Honda testified that he conducted surveillance during the morning from a vantage
       point that was:
                “in the vicinity of Douglas Park, specifically, Roosevelt and Whipple area *** and that
                he was approximately anywhere from 50 to a hundred feet. He said a hundred feet
                today, but the Court does not find that he was impeached by the Grand Jury [sic]
                testimony. He had no obstructions. He states he observed three transactions ***.”
¶ 13       In his posttrial motion, Reed contended that the trial court erred in denying his pretrial
       motion to disclose the surveillance location. The trial court also denied the posttrial motion and
       observed:
                    “And the Court did not err in denying the defense motion to disclose the
                surveillance location. There was still plenty of opportunity for the defense to make a
                visual assessment to determine the exact location. The Court did not believe that
                interfered with any right of confrontation or preparing for the trial and again, the Court
                does not feel that the decision or the evidence that the Court relied on or heard was a
                finding against the manifest weight of the evidence.”
¶ 14       This timely appeal followed.


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¶ 15                                            Analysis
¶ 16       Reed contends that the trial court impermissibly restricted his sixth amendment right to
       confront the evidence against him by denying disclosure of the surveillance location of the
       only officer who saw him possess the narcotics.
¶ 17       The sixth amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the
       right *** to be confronted with the witnesses against him.” U.S. Const., amends. VI, XIV; see
       also Ill. Const. 1970, art. I, § 8. The trial court has discretion to limit the scope of
       cross-examination at trial, and this court will not disturb the trial court’s decision absent an
       abuse of discretion. People v. Enis, 139 Ill. 2d 264, 295 (1990).
¶ 18       There is a qualified privilege concerning disclosure of secret surveillance locations. People
       v. Criss, 294 Ill. App. 3d 276, 281 (1998). Whether disclosure is needed is decided on a
       case-by-case basis. Courts balance the public interest in keeping the location secret with the
       defendant’s interest in preparing a defense. Id. The defendant’s right to cross-examination
       concerning the surveillance location is more important if the witness is more important to the
       State’s case. People v. Knight, 323 Ill. App. 3d 1117, 1127-28 (2001). If the State’s case
       against the defendant depends almost exclusively on one police officer’s testimony, disclosure
       must “almost always” be required. Id. at 1128. Disclosure would not be required where there is
       no question about the surveillance officer’s ability to observe, or where evidence appears on a
       contemporaneous videotape. Id.
¶ 19       If the State invokes the privilege against disclosure of the surveillance location, the State
       has the initial burden to demonstrate that the privilege applies. People v. Price, 404 Ill. App. 3d
       324, 331 (2010). That burden is satisfied by proof that the surveillance location was either on
       private property with the owner’s permission, or in a useful location that would be
       compromised by disclosure. Id. at 332.
¶ 20       Reed first argues that the court gave an insufficient reason for denying disclosure, i.e.,
       “ongoing investigation,” and failed to properly weigh the public’s interest in nondisclosure of
       the surveillance point against his need for the information.
¶ 21       The record before us is insufficient for us to conduct a meaningful review of the reasons for
       the trial court’s application of the surveillance location privilege. When Reed moved for
       disclosure, the court conducted an in camera interview of Officer Honda, then concluded that
       an ongoing investigation warranted preserving the secrecy of Officer Honda’s exact location.
       The proceeding was apparently not transcribed, so we have no information as to what Officer
       Honda told the court. Also, although Reed decries the lack of detailed findings, he did not ask
       the court to clarify its reasoning or state its findings with greater specificity. As noted by the
       concurring justice in People v. Britton, 2012 IL App (1st) 102322, ¶¶ 35-36 (Epstein, J.,
       specially concurring), surveillance location cases often involve inadequate records due to the
       nature of in camera proceedings. Nevertheless, it is the appellant’s burden to provide this court
       with a record adequate to support claims of error, and in the absence of an adequate record, we
       resolve all doubts against the appellant and presume that the trial court’s ruling had a sufficient
       legal and factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984); see also People v.
       Deleon, 227 Ill. 2d 322, 342 (2008); People v. Britton, 2012 IL App (1st) 102322, ¶¶ 36-38

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       (Epstein, J., specially concurring). Therefore, we will presume that, at the in camera hearing,
       the court heard information sufficient to sustain the State’s burden that the privilege applied.
¶ 22       Reed next contends that, even if there were reasons supporting nondisclosure, the court
       erred in applying the surveillance location privilege because disclosure must “almost always”
       be ordered when the case turns on the ability of a single officer to observe the offense. In
       making this argument, Reed relies primarily on Knight, 323 Ill. App. 3d at 1128, and Price,
       404 Ill. App. 3d at 331. In both of these cases, the officers’ ability to observe what they testified
       to was called into serious question. For example, in Knight, identity was contested where a
       church pastor testified that defendant was unloading a van at the location where he was
       arrested for selling drugs, and there was testimony that a man wearing a jacket similar to
       defendant’s was in the area selling drugs. The officer could not recall what type of jacket
       defendant wore. Also, the surveillance officer observed only a single transaction, lost sight of
       the offender for a few minutes, and recovered no money from defendant despite having
       observed defendant receive money in exchange for suspected drugs. In Price, 404 Ill. App. 3d
       at 332-33, this court held that the trial court erred in recognizing the surveillance location
       privilege where the State failed to show, as part of its initial burden, that the location was either
       “on private property with the permission of the owner,” or “in a location that is useful and
       whose utility would be compromised by disclosure.” Unlike Price, the trial court here
       conducted an in camera interview of the officer, and we have no record of what information
       was imparted to the trial court.
¶ 23       Officer Honda testified regarding his distance from Reed, his vantage point, his level of
       elevation, the type of lighting, the lack of obstructions and his ability to hear from his
       surveillance point. When shown a photograph of a tree (which is not contained in the record),
       the officer explained that the transactions he observed were not obstructed by the tree. Unlike
       Knight, 323 Ill. App. 3d at 1119-21, 1128, there was no evidence that seriously called into
       question the officer’s ability to observe. On this record, we cannot find that the trial court
       abused its discretion in denying Reed’s motion to disclose the officer’s exact surveillance
       location.
¶ 24       The judgment of the circuit court is affirmed.

¶ 25       Affirmed.




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