People v. Allard
| Decision Date | 20 February 2018 |
| Docket Number | 2–16–0929,2–16–1050,2–17–0033 cons.,Nos. 2–16–0927,2–16–0928,s. 2–16–0927 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. James ALLARD, Defendant–Appellee. The People of the State of Illinois, Plaintiff–Appellant, v. Garland Bone, Defendant–Appellee. The People of the State of Illinois, Plaintiff–Appellant, v. Gregory Harris Sr., Defendant–Appellee. The People of the State of Illinois, Plaintiff–Appellant, v. Tyrone Springs, Defendant–Appellee. The People of the State of Illinois, Plaintiff–Appellant, v. Anthony Love, Defendant–Appellee. |
| Court | United States Appellate Court of Illinois |
Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino, Lawrence M. Bauer, Richard S. London, and Stephanie H. Lee, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Richard Dvorak and Christopher A. Tinsley, of Dvorak Law Offices, LLC, of Willowbrook, for appellee James Allard.
Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, of State Appellate Defender’s Office, of Elgin, for other appellees.
¶ 1 As part of an investigation into gang activity, the Lake County State's Attorney's Office obtained authorization to intercept private communications involving certain telephone numbers. The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/108B (West 2014) ), based on applications signed and presented by two assistant state's attorneys (ASAs), not by the elected state's attorney (SA).
¶ 2 Defendants were charged with various offenses and they learned that the State intended to introduce at trial certain evidence arising from the wiretaps. Defendants joined in a motion to suppress the evidence, arguing that the SA's failure to personally apply for the wiretap orders violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ( 18 U.S.C. §§ 2510 – 2522 (2012) ), better known as "Title III." The trial court suppressed the evidence, ruling that Title III preempts article 108B and does not authorize an ASA to apply for a wiretap order.
¶ 3 On appeal from the suppression orders, the State argues that the SA complied with the Illinois and federal wiretap statutes in delegating to the ASAs the authority to apply for the wiretap orders. The State alternatively contends that, even if the orders were not supported by proper applications, the evidence is admissible because the prosecution acted in good faith. Further, the State asserts that any new rule regarding who may submit a wiretap application should apply only prospectively.
¶ 4 We affirm the trial court's suppression of the evidence derived from the wiretaps on the ground that the SA's office simply failed to comply with article 108B of the Code of Criminal Procedure. The good-faith exception does not apply, because the error was caused by law enforcement. Further, any consideration of a retroactive or prospective application of our holding would be premature. We need not address the remaining issues raised by the parties, including whether article 108B is impermissibly broader than Title III.
¶ 7 Between May 2014 and September 2014, ASA Reginald Mathews, chief of the gang and narcotics prosecution division of the Lake County State's Attorney's Office, and, in one instance, ASA Ari P. Fisz, chief of the felony trial division of the Lake County State's Attorney's Office, signed and presented applications to the circuit court of Lake County. The applications requested orders and extension orders for nonconsensual telephone interceptions, related to a law enforcement investigation involving a street gang known to investigators as the Four Corner Hustler Drug Trafficking Organization (the gang). The investigation was being conducted by the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group; and the police departments of Waukegan, North Chicago, and Zion. The goal of the investigation was to obtain evidence to prosecute individuals who were trafficking cocaine and heroin in and around Lake County.
¶ 8 The applications for wiretap orders targeted specific cell phone numbers that, according to the supporting affidavits, the investigation had linked to defendants. Each application was supported by an affidavit from an investigator and each stated that it was submitted "on behalf of Michael G. Nerheim, State's Attorney of Lake County." The orders approving the wiretaps were signed by Judge Victoria Rossetti, presiding judge of the criminal division of the circuit court of Lake County, except for one extension order that was signed by Judge Daniel Shanes of the Lake County circuit court.
¶ 9 Consistent with the applications, each order noted that the application was made, under oath, by either ASA Mathews or, in one instance, ASA Fisz, "on behalf of Michael G. Nerheim, State's Attorney of Lake County." The orders stated that they were entered pursuant to article 108B of the Code of Criminal Procedure.
¶ 10 Section 108B–2(a) governs "request[s] for application for interception." 725 ILCS 5/108B–2(a) (West 2014). The statute provides that "[a] State's Attorney may apply for an order authorizing interception of private communications in accordance with the provisions of this Article ." (Emphasis added.) 725 ILCS 5/108B–2(a) (West 2014). In turn, section 108B–3(b) provides that "[t]he State's Attorney or a person designated in writing or by law to act for the State's Attorney and to perform his or her duties during his or her absence or disability , may authorize, in writing, an ex parte application to the chief judge of a circuit court for an order authorizing the interception of a private communication when no party has consented to the interception and the interception may provide evidence of, or may assist in the apprehension of a person who has committed, is committing or is about to commit, a violation of an offense under Article 29D of the Criminal Code of 1961 or the Criminal Code of 2012." (Emphasis added.) 725 ILCS 5/108B–3(b) (West 2014).
¶ 12 On November 19, 2014, defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance with the intent to deliver. On October 28, 2015, defendants were indicted for additional counts of criminal drug conspiracy and street gang criminal drug conspiracy.
¶ 13 On February 22, 2016, defendants moved to suppress evidence that had been obtained pursuant to the wiretap orders. Defendants' motion argued that, pursuant to Illinois and federal law, an application for a wiretap order must be personally authorized, in writing, by the elected SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was so authorized and that, therefore, the orders entered pursuant to the applications were invalid. On April 26, 2016, the State responded that ASAs Mathews and Fisz were properly authorized to act on behalf of SA Nerheim for the purpose of submitting the applications under article 108B. Specifically, the State submitted a letter, on the SA's office letterhead, that was dated July 10, 2013, and signed by SA Nerheim. The letter stated that SA Nerheim granted ASA Mathews "my authorization for the interception of private communication pursuant to the requirements as set forth in [section 108B–3]."1
¶ 14 The parties argued the suppression motion at a hearing on July 28, 2016. On September 26, 2016, before the trial court ruled on the motion, the State filed affidavits from SA Nerheim and ASA Mathews that outlined the application process in these cases. The affidavits described a January 2014 meeting regarding the investigation of drug offenses and violent crimes by the gang. At the meeting, ASA Mathews and FBI agents informed SA Nerheim of the need for wiretap orders to further the investigation. Based on this information, SA Nerheim authorized ASA Mathews to apply for the requested orders under article 108B. The affidavits also stated that, from January 2014 to October 2014, ASA Mathews kept SA Nerheim apprised of the progress and developments of the investigation, including each request for additional wiretap orders. SA Nerheim averred that he was involved in the decision-making process throughout the investigation.
¶ 15 ASA Mathews also averred that, during the week of August 4, 2014, he was contacted by an FBI agent who advised him that the investigation had revealed that one of the defendants was using an additional specified cell phone number to commit the offenses at issue. Because he was out of town, ASA Mathews asked ASA Fisz to prepare a wiretap application for that cell phone number and to present the application to the circuit court in ASA Mathews's absence.
¶ 17 On September 27, 2016, the trial court entered five orders, one for each defendant, suppressing the evidence derived from the challenged wiretaps. The court observed that each wiretap application was signed by ASA Mathews or ASA Fisz and stated the following: "I am authorized by law to investigate, prosecute, and participate in the prosecution of the particular offenses which are the subject of this application." The court also acknowledged the evidence of the January 2014 meeting among SA Nerheim, ASA Mathews, and the FBI agents, during which wiretaps were discussed. However, none of the applications cited a statute that authorized the application. SA Nerheim did not sign any of the applications, and they did not indicate on their...
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...is applicable here (citing Tosado v. Miller , 188 Ill. 2d 186, 196, 242 Ill.Dec. 120, 720 N.E.2d 1075 (1999) )); see also People v. Allard , 2018 IL App (2d) 160927, ¶ 54, 421 Ill.Dec. 124, 99 N.E.3d 124 (with two exceptions not applicable here, a judicial decision that establishes a new ru......