THE COLOR OF COCAINE: The Results of Field Tests are not Alone Sufficient to Prove the Presence of a Drug Beyond a Reasonable Doubt
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in May, 1999
I represented the defendant on the appeal of his criminal conviction for the offense of possession of a controlled substance in the case of People v. Hagberg. The Appellate Court in Elgin published its opinion reversing the conviction on December 9, 1998, which is cited at 703 N.E.2d 973. The identification of the substance at trial as cocaine was based solely upon the testimony of a police officer, who conducted a field test on the substance. The reviewing court reversed the conviction based on the insufficiency of the evidence to prove beyond a reasonable doubt that the substance was indeed a controlled substance.
Basically, the testimony in the case indicated that the defendant was placed in a police squad car following his arrest for a traffic offense and resisting arrest. After his removal from the squad car, the defendant's wallet was found on the floor of the vehicle in close proximity to the location where Mr. Hagberg had been seated. In addition, a folded piece of paper was found just a few inches away from his wallet. The substance found within the paper was submitted to a field test, which yielded a positive result.
In arguing that this evidence alone did not suffice to prove the presence of a controlled substance, I had to confront a long line of Illinois cases which contained language confirming that a positive field test alone could prove this element of the crime. This line of cases began with the decision in People v. Clark, 7 Ill.2d 163 (1955). Though you might think at first blush that I was tempting the State to file a motion for sanctions, I believed that I had substantial grounds for challenging the language contained in these opinions. The Second District agreed with me that the language in those prior opinions constituted only dictum.
In Hagberg, the Appellate Court determined that the Clark case had been incorrectly cited for over 40 years as standing for the proposition that a field test alone could prove the controlled nature of a substance beyond a reasonable doubt. The reviewing court noted that the evidence introduced in Clark contained the results of a chemical lab analysis, in addition to the presence of a positive field test. In analyzing succeeding cases, the Appellate Court found that they often contained proof aside from the existence of a positive field test, similar to the facts in Clark. Also, more recent cases relying on Clark frequently presented issues pertaining to the chain of custody of the drugs, rather than their identification as narcotics.
The Appellate Court based its decision in large part on the long-neglected precedent of People v. Judkins, 28 Ill.2d 417 (1963), where the only properly introduced evidence bearing on the presence of drugs within a substance was the existence of a positive field test . In Judkins, the Supreme Court ruled that the presence of a positive field test was not conclusive on this issue, but only probative on this element of the offense. The Hagberg court added that field tests lack sufficient reliability to make their results solely sufficient to prove the presence of a controlled substance beyond a reasonable doubt, unless the State introduces some additional foundation to demonstrate their reliability.
In this appeal, the State could not successfully argue that a sufficient foundation had been introduced to show the reliability of the field test. At the trial, the police officer merely testified that he observed the suspected substance change color when it was tested. Despite the fact that the officer had received some training in performing field tests, he was unable to supply the name of the test or the type of the test. Moreover, he could not recall the color reaction that occurred when he tested the substance and he did not testify whether the test in question was actually specific for cocaine.
The facts in this case are somewhat unusual, due to the lack of any chemical analysis or other proof regarding the reliability of the field test. However, the ruling does supply a basis for challenging the sufficiency of the evidence absent the presence of a chemical analysis or some significant admission of the defendant regarding the nature of the substance. In the future, counsel should be alerted to the need to challenge field test evidence in the absence of a chemical analysis. In addition, defense attorneys should consider filing motions to require the State to demonstrate the reliability of field test evidence in the context of a Frye hearing. This approach may yield additional discovery, which could be useful in supporting a challenge to the use of field test evidence.
The opinion in Hagberg is not yet the final word on this subject, since a petition for leave to appeal filed on behalf of the State is currently pending in the Supreme Court of Illinois.