People v. CALGARO

• Decision Date: 03 May 2004
• Docket Number: No. 2-03-0397.,2-03-0397.
• Citation: 809 N.E.2d 758,284 Ill.Dec. 192,348 Ill. App.3d 297
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Prudy CALGARO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

809 N.E.2d 758

348 Ill. App.3d 297

284 Ill.Dec. 192

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Prudy CALGARO, Defendant-Appellee.

No. 2-03-0397.

Appellate Court of Illinois, Second District.

May 3, 2004.

Roger T. Russell, Boone County State's Attorney, Belvidere, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Lawrence M. Bauer, Deputy Director, Gary F. Gnidovec, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Jack P. Rimland, Law Office of Jack P. Rimland, Chicago, for Pridy Calgaro.

Justice BOWMAN delivered the opinion of the court:

The State appeals the trial court's order suppressing evidence against defendant, Prudy Calgaro, that was obtained through judicially authorized eavesdropping. The State contends that the trial court erred in holding that the application to use an eavesdropping device did not establish reasonable cause to believe that the recorded conversations would produce evidence that a felony was being committed. We reverse and remand.

The eavesdropping in question occurred as part of an ongoing investigation of alleged prostitution at the C'est la Vie massage parlor. Members of the State Line Area Narcotics Team (SLANT) wanted to have an informant, identified as Tammy Strawberry, call the C'est la Vie posing as a prospective employee. Inspector Robert Czech of SLANT obtained the State's Attorney's approval and submitted to the trial court an application for a wiretap authorization.

The application stated that the parties whose conversations were to be recorded were Tammy Strawberry, defendant, "and any other persons that may involve themselves in pandering violations." In an affidavit accompanying the application, Czech related interviews with witnesses who described acts of prostitution that occurred at the C'est la Vie. Czech averred that Strawberry was the consenting party and that Strawberry and defendant were the parties whose conversations would be overheard. The final paragraph of the affidavit stated as follows:

"The nature of this investigation is such that any authorization granted pursuant to this petition should not terminate automatically; it is anticipated that conversation with Tammy Strawberry and Prudy I. Calgaro will result in more than one conversation which will consist of negotiations for Tammy Strawberrys participation in and performance of acts of prostitution while being employed by Prudy I. Calgaro at Calgaro's place of business (The C'est la Vie) and obtaining corroborative evidence of Calgaro's involvement in and association with others involved in violations of the Pandering statute."

Judge Gerald F. Grubb issued an order authorizing the monitoring of conversations between Strawberry and defendant "and possible unknown persons."

Apparently such conversations did occur. Defendant moved to suppress the evidence obtained during those conversations. The trial court, through Judge J. Todd Kennedy, granted the motion. Although the motion did not specifically raise this ground, the court held that the wiretap application documents did not link defendant to any pandering violations at the C'est la Vie. The court observed that Czech's affidavit stated only that defendant was the registered agent of the business; it did not state that she played any role in the business's hiring or other day-to-day operations. The State filed a certificate of impairment and a timely notice of appeal.

The State contends that the trial court should not have suppressed the evidence, because a liberal reading of the application documents permits the inference that defendant was involved in the illicit activities at the C'est la Vie. We agree with the State that the evidence should not have been suppressed, albeit for slightly different reasons.

Generally, when a motion to suppress evidence involves factual determinations, a reviewing court will not reverse a trial court's ruling unless it was manifestly erroneous. People v. Buss, 187 Ill.2d 144, 204, 240 Ill.Dec. 520, 718 N.E.2d 1 (1999). However, where the facts are not in dispute, our review is de novo. People v. Anthony, 198 Ill.2d 194, 201, 260 Ill.Dec. 632, 761 N.E.2d 1188 (2001). Here, no facts were disputed and the court's ruling turned solely on legal issues.

Defendant contends, as the trial court held, that the application documents did not link her to the illegal activities at the C'est la Vie. The expected conversations were to consist of Strawberry calling the business to ask about employment there, which would presumably involve a description of her job duties. However, the application listed defendant only as the registered agent, which does not necessarily support a conclusion that she was involved in the business's day-to-day operations or was responsible for its hiring. Thus, according to defendant, the application did not demonstrate that the eavesdropping was likely to record Conversations about the described criminal activity.

The problem with this argument is that neither the application nor the authorization order specifically limited the recorded conversations to those involving defendant. The application requested permission to monitor conversations between Strawberry and "Prudy I. Calgaro and any other persons that may involve themselves in pandering violations." The order similarly allowed recording conversations with "Prudy I. Calgaro, and possible unknown persons." Moreover, a careful review of the statute governing judicially approved wiretapping reveals that this was permissible. The specific identity of the person whose conversations are to be recorded is not necessarily critical in obtaining judicial approval for eavesdropping.

Section 108A-3(a) of the Code of Criminal Procedure of 1963 (the Code) governs the process of applying for judicial approval of the use of an eavesdropping device where one party to the anticipated conversation consents to its use. 725 ILCS 5/108A-3(a) (West 2002). The statute requires a statement of facts to justify a reasonable belief that a felony has been, is being, or is about to be committed; a description of the type of communication to be monitored; the identity of the consenting party; and "the identity of the person, if known, whose conversations are to be overheard by the eavesdropping device." 725 ILCS 5/108A-3(a)(2) (West 2002).

Section 108A-4 of the Code provides that a judge may authorize the use of an eavesdropping device if he or she finds that one party to the conversation has or will have consented to the use of the device; there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a felony; and there is reasonable cause for believing that particular conversations concerning that felony will be obtained. 725 ILCS 5/108A-4 (West 2002).

The restrictions on the use of an eavesdropping device in such situations are purely statutory; the fourth amendment to the United States Constitution (U.S. Const., amend.IV) is not implicated. People v. Sylvester, 86 Ill.App.3d 186, 190, 41 Ill.Dec. 504, 407 N.E.2d 1002 (1980). However, because Illinois citizens are entitled to be safeguarded from unnecessary governmental surveillance and other unreasonable intrusions into their privacy, the statutory restraints on eavesdropping must be strictly construed with respect to all requests and consents for the authority to use an eavesdropping device. People v. Bockman, 328 Ill.App.3d 384, 388, 263 Ill. Dec. 106, 767 N.E.2d 832 (2002); People v. Monoson, 75 Ill.App.3d 1, 5, 30 Ill.Dec. 892, 393 N.E.2d 1239 (1979).

"Reasonable cause" as used in the eavesdropping statute is synonymous with "probable cause" and is established when the totality of the circumstances is sufficient to warrant the belief by a reasonable person that an offense has been, is being, or will be committed. People v. White, 209 Ill.App.3d 844, 876, 153 Ill.Dec. 910, 567 N.E.2d 1368 (1991). An application to use an eavesdropping device should be viewed in a commonsense manner and the issuing judge's conclusions that reasonable cause exists should be given great deference when reviewed by subsequent judges. White, 209 Ill.App.3d at 877, 153 Ill.Dec. 910, 567 N.E.2d 1368. Nevertheless, an application must establish...