No. 1-16-0718 Opinion filed June 20, 2019

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 15 CR 9079 ) MAURICE SANDERS, ) The Honorable ) Thaddeus L. Wilson, Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant Maurice Sanders was convicted of

possession of a controlled substance, namely, heroin, and sentenced to five

years with the Illinois Department of Corrections (IDOC). No. 1-16-0718

¶2 On this appeal, defendant claims that the trial court erred in denying his

pretrial motion for disclosure of the exact surveillance location of the officer

who observed him during the offense. Defendant also challenges the imposition

of various fines and fees. For the following reasons, we do not find persuasive

his arguments regarding the surveillance location and, thus, affirm his

conviction. However, with respect to the fines and fees, we remand to the

circuit court for further proceedings consistent with the newly revised Illinois

Supreme Court Rule 472(e) (eff. May 17, 2019), which we discuss further

below.

¶3 BACKGROUND

¶4 Defendant was charged by information with a single count of possession

of one gram or more of heroin with intent to deliver. After a bench trial, the

trial court found him guilty of the lesser included offense of possession of a

controlled substance.

¶5 Prior to trial, defendant moved for disclosure of the surveillance location

of police officer Alan Rogers, who had observed defendant during the offense

and who was the sole witness to testify at defendant's bench trial.

¶6 In response to the motion, the trial court conducted an in camera

examination of Officer Rogers. The only individuals present during the

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examination were the trial judge, the court reporter and Officer Rogers. The

transcript, which was sealed, is a part of the appellate record.

¶7 After the in camera examination, the trial court stated on the record:

"THE COURT: All right. The Court conducted an in-camera [sic]

examination of the officer—one second.

Everyone must be seated.

All right. And given the testimony of the Officer during that

examination, and in the interest of public safety, and the Officer's ability

with respect to that location, the Court has determined that disclosing that

location would not be appropriate; and therefore, the Motion to Disclose

Surveillance Location is denied.

ASSISTANT PUBLIC DEFENDER: Thank you, Judge.

THE COURT: However, the transcript of the in-camera [sic]

examination of the Officer, will be sealed, and made a part of the record,

and shall not be opened or released without Order of Court."

The above record shows that defense counsel was present but did not object to

the trial court's issuing its decision at this time and did not seek further

argument in addition to defendant's written motion.

¶8 At trial, Officer Rogers testified that he had been a police officer for 15

years. On May 14, 2015, he and his fellow officers began a narcotics 3 No. 1-16-0718

investigation on the 1000 block of North Lawndale Avenue in Chicago, in

which he was the surveillance officer. At 11:10 a.m., he observed defendant

enter a nearby vacant lot, bend down by a pile of sticks and brush, and remove a

piece of yellow and red paper from the pile. Officer Rogers next observed

defendant remove a gold item from the paper and walk toward a woman

standing on the sidewalk. Defendant and the woman spoke briefly, and

defendant handed her the gold item in exchange for paper money.

¶9 Officer Rogers testified that, during the next five minutes, he observed

defendant walking around, near the lot. Defendant was then approached by a

man on a bicycle. After speaking with this man briefly, defendant returned to

the vacant lot to retrieve a piece of yellow and red paper from the pile.

Defendant removed a gold item from the paper and handed it to the man in

exchange for paper money.

¶ 10 Officer Rogers testified that, based on his training and his 15 years of

experience, he believed these exchanges "to be street level hand-to-hand

narcotics transactions." During his surveillance, he kept in constant contact

with the other officers through their police radios, "giving them a description of

the hand-to-hands after they had occurred" and a description of defendant and

his location. After Officer Rogers had radioed the other officers, he observed

them approach and detain defendant. Rogers then left his surveillance location

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and proceeded to the vacant lot. At the lot, he recovered a piece of red and

yellow cardboard with a strip of gold tape that "contained six tinfoil packets of

suspect heroin." Rogers also confirmed that the person who the officers had

detained was the same person who he had observed engaging in hand-to-hand

transactions. Officers later recovered $69 in cash from defendant during a

custodial search.

¶ 11 Officer Rogers testified that it was a clear day, that it was not raining and

that he used binoculars to aid his vision.

¶ 12 On cross-examination, Officer Rogers testified that he was no more than

75 feet away from defendant when he first observed him, or roughly three

house lengths away. Over the State's objection, Rogers testified that he was

"elevated." Rogers also testified that he was located "[w]est" of defendant and

able to observe defendant from the side and "from multiple views." The block

contains multiple vacant buildings, and the officers were watching the area

because it was a known drug area, with drug sales occurring in nearby vacant

buildings. Rogers' surveillance of defendant lasted 20 to 25 minutes. Rogers

described to his fellow officers both the woman and the man who were involved

in the two hand-to-hand transactions. However, Rogers was not able to observe

the denomination of the paper money exchanged. There were no other people

in the area during his surveillance. Later, when defendant was searched at the

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police station and money was recovered, Rogers was present for that search.

During cross-examination, the State raised a number of objections to the

defense's questions, and every objection was overruled by the trial court.

¶ 13 On redirect, Officer Rogers testified that he did not observe anyone else

on the street with defendant when defendant was detained and that he did not

observe anyone else handle the red and yellow paper but defendant.

¶ 14 The parties stipulated that, if Monika Kinslow, a forensic chemist with

the Illinois State Police Crime Lab, were called to testify, she would testify that

she received the six packages recovered from the vacant lot, that she tested four

of the six packages which totaled 1.2 grams in weight, that they tested positive

for the presence of heroin, and that the total weight of the six packages

recovered was 1.8 grams.

¶ 15 The State rested and defendant moved for a directed finding, which was

denied. After closing arguments, the trial court found defendant guilty of the

lesser included offense of possession of a controlled substance. Defendant filed

a posttrial motion for a new trial claiming, among other things, that the trial

court erred when it denied his pretrial motion for disclosure of the surveillance

location. The trial court denied the motion, stating, "I think I gave wide enough

latitude with respect to questioning during trial."

6 No. 1-16-0718

¶ 16 During sentencing, the State observed that defendant had many prior

convictions for possession of a controlled substance, and defense counsel spoke

about defendant's close family ties and life-long problem with substance abuse.

During allocution, defendant stated that he had been "sentenced plenty of times

to the penitentiary" but had never received help there. He asked the trial court

for treatment "to get back on track." After considering factors in aggravation

and mitigation, the trial court sentenced defendant on February 11, 2016, to five

years with IDOC, with a recommendation for drug treatment.

¶ 17 Defendant filed a motion to reconsider sentence, which the trial court

denied, stating: "Given the extensive nature of the defendant's background, and

although I did take into consideration the obvious need for treatment, the Court

believes that the sentence in this case under these facts in this background is

appropriate." This timely appeal followed.

¶ 18 ANALYSIS

¶ 19 Defendant claims that the trial court erred: (1) by denying his pretrial

motion for disclosure of the surveillance location of the officer who observed

him during the offense; and (2) by imposing certain fines and fees. For the

following reasons, we do not find the first claim persuasive and affirm his

conviction. However, with respect to the fines and fees, we remand to the

circuit court for further proceedings consistent with the newly revised Illinois

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Supreme Court Rule 472 (e) (eff. May 17, 2019), which we discuss further

below.

¶ 20 I. Surveillance Location

¶ 21 Defendant's first claim is that the trial court erred in denying his pretrial

motion for disclosure of Officer Rogers' surveillance location.

¶ 22 As both sides correctly observe in their briefs to this court, our standard

of review is whether the trial court abused its discretion. While a defendant has

the right under the sixth amendment (U.S. Const., amend VI) to cross-examine

the witnesses against him, the trial court does have the discretion to limit the

scope of cross-examination and the court's decision to do so will not be

disturbed on appeal absent an abuse of that discretion by the trial court. In re

Manuel M.,

; People v. Palmer,

; People v. Jackson,

.

¶ 23 As our supreme court has observed, "[t]he extent of cross-examination

with respect to an appropriate subject of inquiry rests in the sound discretion of

the trial court." People v. Stevens,

, ¶ 16. An abuse of

discretion occurs only when the trial court's ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by

the trial court. People v. Patrick,

(2009); People v. Lewis,

.

8 No. 1-16-0718

¶ 24 As both sides acknowledge, the Illinois appellate court has recognized a

qualified privilege from disclosing secret surveillance locations in a criminal

proceeding. In re Manuel M.,

; Jackson,

. "This court has developed a consistent and long-

standing body of law regarding the privilege." Palmer,

(listing "numerous cases"). "Despite the plethora of [appellate

court] cases recognizing the qualified surveillance privilege that has been

decided by our court over the decades, our supreme court has not cast doubt on

the continuing vitality of this body of law." Palmer,

.

¶ 25 On this appeal, defendant does not challenge the continued vitality of this

privilege; rather, he argues that it is a qualified privilege and that, under the

well-established parameters of this privilege, it should not apply in his case.

Palmer,

("a qualified privilege"). Whether the

privilege applies is determined "on a case-by-case basis, balancing the public

interest in keeping the location secret against the defendant's right to test the

credibility of a witness by cross-examination." In re Manuel M.,

; Palmer,

(the privilege's

application is "determined on a case-by-case basis, with the trial court balancing

9 No. 1-16-0718

the public interest in keeping the location secret against the defendant's interest

in preparing a defense").

¶ 26 To determine whether the privilege applies in a particular case, the trial

court may hold an in camera examination of the surveillance officer, out of the

presence of both the State and the defense. In re Manuel M.,

; People v. Price,

(2010) (the in

camera examination should take place "outside the presence of both the State

and the defense"). See also Jackson,

(the

trial court abused its discretion by allowing the State to appear and participate

in the in camera proceeding and by issuing its ruling "while in the presence of

only the State"). Following the in camera proceeding, the trial court must

weigh the defendant's need for disclosure of the surveillance location against

the public's interest in nondisclosure. In re Manuel M.,

; Palmer,

; People v. Flournoy,

; People v. Knight,

.

1127 (2001). In the case at bar, the trial court followed the procedure set forth

in our appellate cases, by first holding an in camera examination and then

finding on the record that disclosure would not be appropriate in this particular

case "in the interest of public safety, and the Officer's ability with respect to that

10 No. 1-16-0718

location." Based on our own extensive precedent, we cannot find error in the

trial court's use of the in camera examination.

¶ 27 Defendant argues, based on Jackson, that after the in camera

examination, the trial court should have asked defendant if he wanted to make

further arguments, in addition to the written motion that he had already

submitted which set forth his arguments. In Jackson, we found that the trial

court erred by not allowing further argument after the in camera proceeding,

stating that, once "the State sufficiently established its initial burden of proof,

the trial court" erred when it "denied defendant's motion, without providing him

the opportunity to show that the privilege should not apply." Jackson,

. We found that, "[r]egardless of whether the [trial]

court considered defendant's interest," the trial court erred because "it never

provided defendant the required opportunity to overcome the State's application

of the privilege." Jackson,

.

¶ 28 However, in Jackson, the facts were completely different than in the case

at bar. In Jackson, the trial court had permitted the State to participate in the in

camera examination by asking questions, and thereby support and, in essence,

argue its case for nondisclosure. Jackson,

. Thus,

we found that the trial court erred by not providing the defense with the same

opportunity. Jackson,

. We stated

11 No. 1-16-0718

"that either both parties or neither party" should be allowed to attend the in

camera proceeding. Jackson,

. In the case at

bar, neither party was allowed to attend, so there was no error. In a case where

neither party was allowed to attend, it is not necessary for the trial court to sua

sponte inquire whether the State or the defense wants to supplement their

original motion or objection after the hearing, because neither party gained

additional information from the hearing.

¶ 29 Next, we consider whether the parties satisfied their respective burdens

with respect to the privilege.

¶ 30 "Where, as here, the State invokes the surveillance location privilege at

trial, it bears the initial burden of proof in demonstrating that the privilege

should apply." Palmer,

; In re Manuel M.,

; Jackson,

. The State

may satisfy this initial burden "by presenting evidence that the surveillance

location was either (1) on private property with the permission of the owner or

(2) in a useful location, the utility of which would be compromised by

disclosure." Palmer,

; In re Manuel M.,

; Jackson,

; Price,

.

12 No. 1-16-0718

¶ 31 In the case at bar, the record before us shows that the State satisfied its

burden. Officer Rogers testified at trial that this particular city block contains

multiple vacant buildings and that the police were watching this area because it

is a known drug-trafficking area, with drug sales regularly occurring there.

Thus, the officer's testimony established the need for an elevated and

undisclosed vantage point from which to observe a known drug-trafficking area.

¶ 32 Once the State has carried its initial burden, the burden switches to the

defense to show "that the surveillance location is relevant to the defense or

essential to the fair determination of the case." In re Manuel M.,

; Palmer,

; Jackson,

; Price,

.

¶ 33 In the case at bar, defendant received a great deal of information

regarding the surveillance location from the officer's trial testimony, and

defendant does not identify what arguments he could have made, but did not,

because he lacked certain information. He does not specify what facts about the

location that he needed to know, but did not have.

¶ 34 The officer was never asked at trial, by either party, whether his view

was obstructed in any way. Since the officer was never asked this question, we

do not know if the State would have objected to this question or if the trial court

13 No. 1-16-0718

would have sustained the objection. Thus, whether the officer's view was or

was not obstructed is simply not an issue on this appeal.

¶ 35 We do know from the trial record, and defendant knew as well: that the

officer used a pair of binoculars to aid his vision; that the day was clear and not

raining; that the building in question was 75 feet or three building-lengths

away; that the vantage point was both elevated and west of defendant; that the

officer was able to view defendant from the side and from multiple views; that

the officer was able to observe two hand-to-hand transactions and the paper

currency exchanged, but not the specific denominations of the currency; that he

could observe the color of the paper that defendant removed from the pile of

brush and the color of the foil packages; and that he observed defendant's

detention by other officers before exiting his surveillance location.

¶ 36 Given the amount of detail about the location provided by the officer at

trial, its fairly close proximity especially in light of the officer's use of

binoculars, and defendant's failure to identify additional facts that he needed or

arguments that he could not make, we cannot find that the trial court abused its

discretion in applying the qualified privilege to the facts in this particular case.

¶ 37 In support, defendant relies primarily on two recent cases from this court:

In re Manuel M.,

, and Palmer,

. In both cases, this court found that, when a case against a defendant

14 No. 1-16-0718

turns almost exclusively upon the "uncorroborated" surveillance testimony of a

police officer, disclosure of the surveillance location " 'must almost always be

ordered." " In re Manuel M.,

(quoting Knight,

); Palmer,

(quoting

similar language from Knight). However, the key words in that quote are

"uncorroborated" and " 'almost.' " As we explain below, the instant case is

distinguishable from both cases.

¶ 38 The instant case is distinguishable in several significant respects from In

re Manuel M.,

, in which this court found that a minor

respondent's confrontation rights were violated and reversed.

¶ 39 First, in the Manuel case, this court found that the minor respondent's

confrontation rights were violated both because (1) the trial court allowed the

State to attend the in camera proceeding, examine the witness and make ex

parte arguments against nondisclosure of the surveillance location, while

excluding the defense from the same information and the same opportunity; and

because (2) the trial court denied disclosure of the surveillance location. In re

Manuel M.,

. By contrast, in the case at

bar, the State, as well as the defense, were excluded from the in camera

proceeding.

15 No. 1-16-0718

¶ 40 Second, in the Manuel case, the location was 1½ to 2 blocks away,

several buildings were "situated between" the surveillance location and the park

where the offense occurred, and the officer admitted that the police reports of

the incident failed to mention that he had conducted any surveillance prior to

the minor respondent's arrest. In re Manuel M.,

. By contrast, in the case at bar, the distance was 75 feet or three-building-

lengths away, there is no suggestion that there were buildings between the

officer and the offense location, and no suggestion that police reports failed to

support the officer's trial testimony.

¶ 41 Third, the Manuel officer's surveillance testimony was completely

uncorroborated by any physical evidence or other testimony. The Manuel

officer testified that, prior to arresting the minor respondent for reckless

conduct, he observed, from his surveillance location, that the minor respondent

was flashing gang signs at passing vehicles, causing the vehicles to swerve

toward oncoming traffic or parked vehicles. In re Manuel M.,

. No physical evidence or other testimony corroborated these

surveillance observations. By contrast, in the case at bar, the officer's

surveillance testimony was corroborated by the physical evidence, namely, the

subsequent seizure of what he had observed: gold tinfoil packets attached to a

16 No. 1-16-0718

red and yellow paper or cardboard seized from the vacant lot, as well as the

paper currency seized from defendant.

¶ 42 Defendant also cites in support Palmer,

, in

which this court also reversed. In the Palmer case, the surveillance officer was

not elevated, but kneeling at street-level among bushes and weeds in a vacant

lot, 120 feet away from defendant, at night. Palmer,

. On cross, the defense in Palmer questioned how it was possible

that the same vegetation, which the officer claimed concealed him, did not also

obscure his view. Palmer,

. In closing, the

defense argued that the officer's ability to observe the defendant was

"questionable because 'there was vegetation in the way.' " Palmer,

. In addition, there were questions about the physical

evidence: the currency seized from the Palmer defendant after the hand-to-

hand transactions was not inventoried; and the narcotics dropped by the

defendant were assigned four different inventory numbers, with only one of the

numbers being "assigned to" the defendant. Palmer,

. As a result, the defense argued that it needed the exact surveillance

location and, based on the facts in that case, this court agreed. Palmer,

. By contrast, in the case at bar, the officer was elevated,

and no suggestion has been made that his view was obstructed in any way. See

17 No. 1-16-0718

Palmer,

("If there is no question about a

surveillance officer's ability to observe *** disclosure would not be required.");

Jackson,

(same). Thus, the facts of Palmer are

also distinguishable from the case at bar.

¶ 43 We find that the facts of our case are closer to the facts of People v. Bell,

(2007), and People v. Quinn,

(2002),

in which this court found no abuse of discretion in the trial court's application of

the surveillance location privilege. In Bell and Quinn, this court stressed that

the trial court had permitted the defense extensive latitude on cross-

examination to explore the officer's "credibility and reliability." Bell,

(the defense was permitted to cross-examine "extensively");

Quinn,

(the defense was "allowed to cross-examine [the

officer] extensively with respect to his surveillance"). For example, in Bell, the

direct and cross examinations of the officer established that he was conducting

surveillance of a vacant lot, in a known narcotics-trafficking area, from an

elevated position, 60 to 90 feet away, with a southwest view of the lot; that he

used binoculars under clear weather conditions; that he observed the defendant

engage in a hand-to-hand transaction, exchanging paper money for a shiny item

that came from a brown paper bag; and that the police later recovered the bag,

which contained tinfoil packets of heroin, thereby corroborating the officer's

18 No. 1-16-0718

surveillance observations with physical evidence. Bell,

-

15. Similarly, in the case at bar, the direct and cross examinations of the officer

established that he was conducting surveillance of a vacant lot, in a known

narcotics-trafficking area, from an elevated position, 75 feet away and west of

defendant; that he used binoculars under clear weather conditions; that he

observed defendant engage in hand-to-hand transactions, exchanging gold items

for paper currency that came from a yellow and red paper; and that the police

later retrieved the yellow and red paper with a strip of gold tape that contained

six tinfoil packets of heroin.

¶ 44 Similarly, in Quinn, the officer, using binoculars, observed the defendant,

from 75 to 100 feet away, engaging in several hand-to-hand narcotics

transactions in a vacant lot, from which the observed narcotics were later

recovered. Quinn,

.

¶ 45 In the instant case, as in those cases, defense counsel was allowed

considerable latitude in cross-examining the surveillance officer in order to

establish the relevant facts, and defendant does not point on appeal to any

particular questions on cross that were objected to and sustained, other than for

the exact street address where the officer was located. Bell,

("Without pinpointing the exact surveillance location, defendant was

permitted to establish the officer's position sufficiently enough to allow the trial

19 No. 1-16-0718

court to assess the officer's credibility and reliablity."); Quinn,

("defendant was allowed to extensively cross-examine [the officer] and

pinpoint his surveillance location sufficiently enough to allow the trial court to

evaluate his testimony without revealing the exact surveillance location"). In

fact, the State made a number of objections during defendant's cross-

examination of the surveillance officer and the trial court overruled every one.

In addition, no suggestion was raised that the officer's view was obstructed, as

in Palmer, or that physical evidence or police reports failed to corroborate his

trial testimony or that the State engaged in ex parte argument, as in Manuel.

See Palmer,

(this court reversed "so that [the

defendant] could test his claim that the vegetation that concealed [the officer's]

presence in a vacant lot did not also impair his ability to observe [the

defendant's] conduct"); Manuel,

.

¶ 46 Thus, we cannot find that the trial court abused its discretion in applying

the qualified surveillance location privilege to the particular facts of this case.

¶ 47 II. Fines and Fees

¶ 48 Next, defendant challenges the trial court's assessment of certain fines

and fees.

¶ 49 We observe that the State concedes that the following assessments should

be offset against defendant's per diem credit: (1) the $50 Court System fee; and

20 No. 1-16-0718

(2) the $15 State Police Operations fee. The State also concedes that two

assessments should be vacated: (1) the $5 Electronic Citation Fee; and (2) the

$100 Trauma Center Fund charge.

¶ 50 In his reply brief, defendant acknowledges that the subsequently decided

Illinois Supreme Court case of People v. Clark,

, is controlling

with respect to several of his earlier arguments. Defendant filed his initial brief

in this appeal on June 21, 2018, and our supreme court decided Clark, on

December 28, 2018. Clark addressed several issues that defendant had

previously raised.

¶ 51 Defendant's reply brief acknowledges that Clark is controlling, and not in

his favor, with respect to the following assessments: (1) $190 Felony

Complaint Filed (Clerk) fee; (2) $15 Automation (Clerk) fee; (3) $15

Document Storage (Clerk) fee; (4) $2 Public Defender Records Automation fee;

and (5) $2 State's Attorney Records Automation fee.

¶ 52 In his reply brief, defendant further acknowledges that this court has

already found that the $25 Court Services (Sheriff) fee is a fee not subject to an

offset—a finding that we have made repeatedly. People v. Braden,

; People v. Smith,

;

People v. Brown,

; People v. Tolliver,

(2006). However, he urges us to abandon our precedent.

21 No. 1-16-0718

¶ 53 With respect to these fines-and-fees issues, we remand to the circuit court

for further proceedings consistent with the newly revised Illinois Supreme

Court Rule 472(e) (eff. May 17, 2019). The new rule provides that, "[i]n all

criminal cases pending on appeal as of March 1, 2019, or appeals filed

thereafter in which a party has attempted to raise sentencing errors" regarding

the imposition or calculation of fines, fees, assessments or costs "for the first

time on appeal, the reviewing court shall remand to the circuit court to allow the

party to file a motion" regarding such fines, fees, assessments or costs. Ill. S.

Ct. R. 472(e) (eff. May 17, 2019). The rule further provides that "the circuit

court retains jurisdiction to correct" any alleged errors regarding the imposition

of fines and fees "at any time following judgment and after notice to the

parties." lll. S. Ct. R. 472(a) (eff. May 17, 2019). "Where a circuit court's

judgment pursuant to this rule is entered more than 30 days after the final

judgment, the judgment constitutes a final judgment on a justiciable matter and

is subject to appeal" as its own final judgment. Ill. S. Ct. R. 472(b) (eff. May

17, 2019). Thus, we remand to the circuit court for further proceedings

consistent with Illinois Supreme Court Rule 472 (eff. May 17, 2019).

¶ 54 CONCLUSION

¶ 55 For the foregoing reasons, we do not find persuasive defendant's

arguments concerning the trial court's application of the surveillance location

22 No. 1-16-0718

privilege and, thus, affirm defendant's conviction. However, for the reasons

already explained above, we remand to the circuit court for further proceedings

consistent with Illinois Supreme Court Rule 472 (eff. May 17, 2019).

¶ 56 Affirmed in part; remanded for further proceedings.

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