Obstacles to Bringing Chain of Custody Challenges on Appeal Under the Plain Error Doctrine

The Illinois Supreme Court's recent decision in People v. Alsup, No. 108354, slip op. (Ill. January 21, 2011) contemplates what constitutes a "complete breakdown" in the chain of custody. In Alsup, police officers observed what they concluded was the defendant selling drugs near a trash can in an alley in Chicago. See id. at 2. Police approached defendant near the trash can, around which police suspected defendant was hiding drugs. See id. Behind one trash can, officers "found a ziplock bad containing 10 smaller ziplock bags of suspected cocaine and five tinfoil packets of suspected heroin." Id. Defendant was then arrested. Id. The "10 ziplock bags had a total weight of 1.05 grams of cocaine and the 5 tin foil packets contained a total weight of less than 0.1 gram of heroin." Alsup, No. 108354, slip op. at 3.

At trial, the officer who found the drugs testified that he personally transported them back to the station, where he gave them to another officer, who placed the drugs in a tagged bag, inventoried the bag with a number, and gave the bag to a sergeant, who dropped the bag in a "narcotics vault." See id. at 3. The forensic scientist provided stipulated testimony that he had tested ten packets of cocaine and nine packets of heroin. See id. The State then rested, and the defendant moved for a directed verdict, which was denied. Id. at 4. The defendant was convicted on two counts of possession of controlled substances with intent to deliver, in violation of 720 ILCS 570/401(c)(2) and 401(d) (West 2004). See id. at 1, 5.

Defendant appealed, arguing that "the State failed to prove beyond a reasonable doubt the items tested positive for heroin were the same five tinfoil packets of suspected heroin retrieved from the behind the black city garbage can." Alsup, No. 108354, slip op. at 5. Defendant's argument rested on evidence in the record that the officer at the scene had "testified that he recovered five items of heroin," while the forensic scientist testified that he had tested "nine items of heroin." Id. at 5. The appeal was denied, and defendant petitioned for rehearing, which the appellate court granted. Id. The appellate court then held that the State failed to prove that the items seized and the items tested by the chemist were linked because of the discrepancy in the number of packets. See id. at 6. Defendant's conviction on the heroin count was therefore reversed, and the the State appealed to the Illinois Supreme Court. See id.

Before the Supreme Court, the defendant persisted in his argument that "the five-versus-nine discrepancy indicates a 'complete breakdown' in the chain of custody," which "constitutes a failure to prove the identity of the substance which is an element of the offense." Alsup, No. 108354, slip op. at 7. Citing People v. Woods, 214 Ill. 2d at 471, the Court "acknowledged that under limited circumstances defendant may raise a challenge to the chain of custody for the first time on appeal in "'[T]hose rare instances where a complete breakdown in the chain of custody occurs--e.g., the inventory number or description of the recovered and tested items do no match--raising the probability that the evidence sought to be introduced at trial was not the same substance recovered from defendant…" Id. at 8. The Woods decision further states that in order for a challenge to the chain of custody to result in "the conclusion that the State could not prove an element of the offense," the defendant first had to show that there was a "complete failure of proof, there is no link between the substance tested by the chemist and the substance recovered at the time of defendant's arrest." Id. (citing Woods, 214 Ill. 2d at 471). Therefore, so long as the State proves that there is any link between the evidence discovered on the defendant and the evidence tested by the chemist, the defendant cannot successfully argue that there was a "complete breakdown in the chain of custody." The Supreme Court ultimately reversed the appellate court because it found that there was at least some link between the officer's testimony regarding the five packets he found on defendant and the forensic scientist's testimony regarding the ten packets he tested. See id. at 11.

The Alsup holding does not bar defendants from asserting challenges to the chain of custody. Its holding is only limited to chain of custody challenges brought on appeal under the plain error doctrine. The court has essentially ruled in Alsup that chain of custody challenges cannot succeed on appeal under the the plain error doctrine if there is any link between what is found on the defendant and what is analyzed by the lab tech. As you can see in Alsup, it does not take much to show any link--even if the lab tech testified to analyzing almost twice the number of the packets as the officer had found on the defendant. The problem, however, as shown at the original trial, is that the defendant's conviction was initially based on the number of packets that the lab tech analyzed, not the number of packets that the officer testified to finding on defendant. If the State needs to only show that there is any link, it really only has to show that the officer found some packets of heroin on defendant and that the lab tech analyzed some packets of heroin. In many cases this won't make a difference, but it cases were the defendant could face harsher punishment for possessing larger quantities of packets or packets with greater weight, it very much matters how many packets there are and how much they weigh. Because it is so difficult to bring chain of custody challenges under the plain error doctrine, it is therefore best practice for defense counsel to make these challenges during post-trial motions or sooner so that the defendant does not have to resort to challenging the chain of custody on appeal under the plain error doctrine.