People v. Davis
| Decision Date | 05 June 2020 |
| Docket Number | Appeal No. 3-19-0272 |
| Citation | 157 N.E.3d 1076,2020 IL App (3d) 190272,441 Ill.Dec. 719 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lavail D. DAVIS, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
¶ 1 The State appeals the trial court's order suppressing the recording of a drug transaction between defendant, Lavail D. Davis, and a confidential informant (CI).
The State also challenges the suppression of the CI's in-person testimony regarding the transaction. We reverse and remand.
¶ 3 The State charged defendant with unlawful delivery of a controlled substance. 720 ILCS 570/401(d) (West 2018). The charges stem from a drug transaction that a CI surreptitiously recorded with an audio and video recording device hidden on his person.
¶ 4 Defendant filed a motion to suppress evidence. The motion alleged that the audio and video recording constituted illegal eavesdropping. According to defendant, the police obtained an overhear authorization to record a specific targeted individual. The authorization did not name defendant as the target. Therefore, the CI illegally recorded the conversation he had with defendant. Defendant further argued that the CI's in-person testimony should also be suppressed as the fruit of a poisonous tree.
¶ 5 The parties did not present any evidence at the hearing on defendant's motion to suppress. However, the uncontested evidence is as follows. The Kankakee Area Metropolitan Enforcement Group (KAMEG) received an overhear authorization from the state's attorney. The authorization provided for the recording of a controlled drug purchase between the CI and a specific individual targeted for selling narcotics. The CI previously purchased drugs from the target and arranged for another purchase. The authorization did not name defendant as the person to be recorded. The CI wore a hidden device, which recorded both audio and video. When the CI went to the target's home to make the purchase, he could not locate the target. The CI left and walked to a different location nearby. The CI conducted a drug transaction with defendant. The purchase occurred on the exterior of a house. The State had no evidence that defendant and the target of the investigation acted in concert.
¶ 6 The parties agreed that the audio portion of the video recording of the drug transaction violated the eavesdropping statute because the audio recording of the conversation did not fall within the scope of the authorized overhear. Specifically, the authorization provided for the recording of the targeted individual, not defendant. Nevertheless, the State contended that the video recording and the confidential informant's testimony were admissible, as they were not barred under the eavesdropping statute.
¶ 7 Ultimately, the trial court found that the recording constituted illegal eavesdropping. The court suppressed both the audio and video portion of the recording. The court also barred the CI's testimony as to personally observing and receiving the drugs from defendant as the fruit of a poisonous tree.
¶ 8 The State filed a certificate of impairment pursuant to Illinois Supreme Court Rule 604(a) (eff. July 1, 2017), and this appeal follows.
¶ 10 At the outset, the parties agree that the audio portion of the recording constituted illegal eavesdropping and should be suppressed since it did not fall within the scope of the overhear authorization. The State contends the trial court should not have suppressed the video (without audio) and the CI's in-person testimony. Specifically, the State contends that neither the video nor the CI's personal knowledge derived from the illegal audio recording. Consequently, the State contends that this evidence is not barred at trial. Resolving this question requires us to interpret section 14-5 of the Criminal Code of 2012 ( 720 ILCS 5/14-5 (West 2012) ). Section 14-5 bars the admission of evidence obtained in violation of the eavesdropping statute. Id. Our review is de novo . See People v. Luedemann , 222 Ill. 2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006).
¶ 11 The primary rule of statutory construction is to give effect to the true intent of the legislature, which is best determined from the statutory language itself. Illinois Graphics Co. v. Nickum , 159 Ill. 2d 469, 479, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). When statutory language is clear and unambiguous, it must be given effect without resort to other aids of interpretation. Village of Chatham v. County of Sangamon , 216 Ill. 2d 402, 429, 297 Ill.Dec. 249, 837 N.E.2d 29 (2005). Unambiguous statutes must be enforced as enacted, and a court cannot depart from their plain language by reading into them exceptions, limitations, or conditions that conflict with the expressed legislative intent. Franz v. Calaco Development Corp. , 352 Ill. App. 3d 1129, 1150, 288 Ill.Dec. 669, 818 N.E.2d 357 (2004).
¶ 12 The clear and unambiguous language of section 14-5 provides that "[a]ny evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *." 720 ILCS 5/14-5 (West 2018) ). The key to inadmissibility under section 14-5 is that the evidence must be obtained as a result of illegal eavesdropping activity. That is, either the evidence itself is an illegal recording of a conversation, or the illegal eavesdropping led investigators to inculpatory evidence. Upon review, we find the trial court erred in suppressing the video recording and the CI's in-person testimony since the evidence did not derive from a violation of the eavesdropping statute.
¶ 13 Under the plain language of section 14-5, the trial court correctly found the audio recording inadmissible on the basis that the audio recording itself constituted illegal eavesdropping. However, the prohibition does not extend to the video portion of the recording or the CI's personal knowledge of the drug transaction. This evidence derived independently from the illegal eavesdropping. The CI participated in the conversation. He did not eavesdrop. The dissent speculates that the CI would not have had a conversation with defendant but for the illegal audiotaping. This is pure fantasy unsupported by the record. In addition, the video recorded simultaneously with the audio recording.1 In other words, neither the CI's personal knowledge nor the video recording resulted from the illegal eavesdropping. Therefore, section 14-5 does not bar the admission of the video recording or the CI's in-person testimony. There is no need to consider the application of the fruit-of-a-poisonous-tree doctrine, as this evidence did not derive from illegal eavesdropping.
¶ 14 Our conclusion is supported by our supreme court's decision in People v. Gervasi , 89 Ill. 2d 522, 61 Ill.Dec. 515, 434 N.E.2d 1112 (1982). In Gervasi , the supreme court considered the admissibility of transcripts and in-person testimony of overheard conversations. Id. Investigators suspected defendant of bribery. Id. at 524, 61 Ill.Dec. 515, 434 N.E.2d 1112. Defendant made several telephone calls to the investigators. Id. at 524-25, 61 Ill.Dec. 515, 434 N.E.2d 1112. Court reporters transcribed each telephone conversation while listening on an extension phone that had its speaking element removed. Id. Defendant also spoke to investigators several times in person. Id. at 525, 61 Ill.Dec. 515, 434 N.E.2d 1112. On two of the face-to-face discussions, a court reporter transcribed the conversation without the aid of an eavesdropping device. Id.
¶ 15 On review, the supreme court first found that the extension phone with the speaking element removed constituted an eavesdropping device. Id. at 526-27, 61 Ill.Dec. 515, 434 N.E.2d 1112. Therefore, the court found that the court reporters eavesdropped on defendant's telephone calls. Id. at 527, 61 Ill.Dec. 515, 434 N.E.2d 1112. The supreme court found the court reporters' testimony and transcriptions were inadmissible as to the telephone conversations. Id. By contrast, the court held that the investigators that spoke to defendant over the phone could testify to the contents of the conversation. Id. at 531, 61 Ill.Dec. 515, 434 N.E.2d 1112. The court found that the investigators did not eavesdrop but acted as a party to the conversation. Id. Therefore, the court held that the officers' knowledge of the conversation did not derive from illegal eavesdropping. As to the face-to-face conversations, the supreme court found the officers' and court reporters' testimony as well as the transcriptions admissible, as the evidence was obtained without the use of an eavesdropping device. Id. at 533-34, 61 Ill.Dec. 515, 434 N.E.2d 1112.
¶ 16 Like the investigators in Gervasi , the CI in this case did not eavesdrop. Rather, the CI acted as a party to the conversation. Therefore, the CI's in-person testimony is admissible under Gervasi . In addition, the video recording did not derive from eavesdropping activity. In other words, the audio eavesdropping did not lead the CI or police to the drug transaction. Rather, the CI made the video recording at the same time as the audio recording. The video is independent of the eavesdropping and, therefore, admissible.
¶ 21 I dissent. I disagree with the majority's determination that the video portion of the illegal recording and the testimony of the CI are independent of the government's illegal activities. I would affirm the trial court's order granting defendant's motion to suppress.
¶ 22 The eavesdropping statute provides: "Any evidence obtained in violation of this Article is not...
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