dissenting:
Unlike the majority, I believe that the State presented sufficient evidence to establish the defendant’s guilt of the charged offense of possession with intent to deliver more than one gram but less than 15 grams of cocaine. In the circumstances shown here, the tests performed on two of the five plastic packets found together in a single bag in the defendant’s possession were adequate to establish the contents of all five packets, and the judge at the bench trial below was entitled to infer from the evidence that the defendant was guilty of an offense involving the greater amount of contraband.
In requiring direct rather than circumstantial evidence of the contents of each packet, the majority ignores the rationale for the rule to which this decision will stand as an exception. The majority f acknowledges that proof by random sampling may be used for tablets, pills, or capsules, yet the majority refuses to allow the same process of proof when contraband is divided among plastic packets, as it was here. There is no reason to allow random sampling in one case and not the other, however. The same considerations of "reason and practicality” (174 Ill. 2d at 429) that permit the use of sampling when contraband takes the form of tablets, pills, or capsules also warrant its use when contraband is found in plastic packets or other, similar, containers. See People v. Black, 264 Ill. App. 3d 875, 877 (1994). Indeed, the contents of capsules can be as variable as the contents of the plastic packets involved in this case. In either event, tests of randomly selected samples may provide circumstantial evidence of the contents of the remaining items.
The strength of the inference of guilt will depend, of course, on the circumstances in the case, including the size and appearance of the items involved and the manner in which they were kept by the defendant or made available for distribution. Dissimilarities in the size or appearance of the containers or in the manner in which they were grouped, for example, might suggest that their contents are also dissimilar. In the present case, all five plastic packets were kept together in a single bag, and the defendant does not point to any feature that distinguished the two packets that were tested from the three that were not.
In support of its decision, the majority also notes the existence of look-alike drugs and the separate statute proscribing their sale, suggesting that untested samples might actually comprise a look-alike substance rather than the drug alleged in the charge. The same objection can be raised, however, when the contraband is in one of the forms for which the majority would allow proof by random sampling. Tablets, pills, and capsules can also be look-alike substances.
Finally, our recent decision in People v. Robinson, 167 Ill. 2d 397 (1995), is not to the contrary. The court in that case merely noted the line of appellate court authority under which "a sample from each separate bag or container must be tested to prove that it contains a controlled substance.” Robinson, 167 Ill. 2d at 409. Robinson did not find it necessary to resolve the issue raised here.
I believe that there was sufficient proof of the defendant’s guilt of the charged offense, and I would therefore affirm the defendant’s conviction. There is no reason to require the State in cases such as this to test the contents of each of the items the defendant has in his possession. Random sampling can provide circumstantial evidence of guilt, the strength of which will vary from case to case. Today’s decision simply imposes an unnecessary burden on the State, making more difficult the prosecution of offenders who are found with contraband divided among multiple bags, packets, or other containers that, under the majority’s rule, must now be tested individually.
CHIEF JUSTICE BILANDIC joins in this dissent.