People v. Davis

• Decision Date: 21 October 2021
• Docket Number: Docket No. 126435
• Citation: 2021 IL 126435,185 N.E.3d 1223,452 Ill.Dec. 487
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Lavail D. DAVIS, Appellant.
• Court: Illinois Supreme Court

2021 IL 126435
185 N.E.3d 1223
452 Ill.Dec. 487

The PEOPLE of the State of Illinois, Appellee,
v.
Lavail D. DAVIS, Appellant.

Docket No. 126435

Supreme Court of Illinois.

Opinion filed October 21, 2021.

185 N.E.3d 1224

Bart E. Beals, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Nicholas Moeller, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with opinion.

452 Ill.Dec. 488

¶ 1 Defendant, Lavail D. Davis, was charged in the circuit court of Kankakee

185 N.E.3d 1225

452 Ill.Dec. 489

County with unlawful delivery of a controlled substance. 720 ILCS 570/401(d) (West 2018). Defendant filed a motion to suppress evidence, which the circuit court granted. The State then filed a certificate of impairment pursuant to Illinois Supreme Court Rule 604(a) (eff. July 1, 2017) and appealed the circuit court's order. The Appellate Court, Third District, with one justice dissenting, reversed the circuit court's order granting defendant's motion to suppress and remanded the case to the circuit court. 2020 IL App (3d) 190272, 441 Ill.Dec. 719, 157 N.E.3d 1076. This court subsequently allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1, 2019).

¶ 2 BACKGROUND

¶ 3 Pursuant to section 14-3(q) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/14-3(q) (West 2018)), the Kankakee County State's Attorney authorized the Kankakee Area Metropolitan Enforcement Group to secretly record a controlled drug purchase between a confidential informant and another individual. Defendant was not named as the person to be recorded. As a part of that investigation, the informant stood outside the target's home while wearing a recording device that recorded both audio and video. When the informant went to the target's home, he could not locate him. The informant then walked to the porch of a different home and conducted a drug transaction with defendant, which was recorded with the audio and video recording device hidden on the confidential informant. That transaction gave rise to the charges against defendant.

¶ 4 Defendant filed a motion to suppress the audio and video recorded conversation pursuant to section 14-5 of the Code (id. § 14-5), arguing that he was not the named subject of the eavesdropping exemption application, so that the recording of the transaction constituted illegal eavesdropping. At the hearing on defendant's motion to suppress, the parties agreed that the audio portion of the recording of the drug transaction violated the eavesdropping statute because the audio recording did not fall within the scope of the authorized overhear. Defendant argued that the video recording and any testimony from the confidential informant concerning the transaction also should be suppressed as illegally obtained evidence under section 14-5.

¶ 5 Following the hearing, the circuit court granted defendant's motion to suppress. The circuit court found that there was an illegal overhear conversation between defendant and the confidential informant that took place before the drugs were seen in the video. Because the illegal overhear conversation preceded the appearance of any drugs in the video, the circuit court found that the video recording was fruit of the poisonous tree and therefore must be suppressed. In addition, the confidential informant could not testify concerning the drug transaction because the drug transaction occurred after the illegal overhear conversation, so that the confidential informant's testimony also was fruit of the poisonous tree. The circuit court therefore suppressed both the audio and video recording, as well as any testimony concerning the transaction between the confidential informant and defendant.

¶ 6 The circuit court subsequently denied the State's motion to reconsider. The circuit court again stressed that there was a primary illegality—the audio recording of defendant—that was not authorized by the Code. The circuit court stated that, given the primary illegality, the issue was whether the video and testimonial evidence came at the exploitation of the primary illegality or was sufficiently distinguishable to be purged of the primary taint. The

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452 Ill.Dec. 490

circuit court reaffirmed that the video recording and the testimony of the confidential informant came at the exploitation of the primary illegality. The circuit court also held that the evidence was not purged of the primary taint.

¶ 7 On appeal, the appellate court majority first noted that the parties again agreed that the audio portion of the recording constituted illegal eavesdropping and should be suppressed because the audio recording did not fall within the scope of the overhear authorization. 2020 IL App (3d) 190272, ¶ 10, 441 Ill.Dec. 719, 157 N.E.3d 1076. The appellate court then agreed with the State that the suppression did not extend to the video portion of the recording or the confidential informant's personal knowledge of the drug transaction. Id. ¶ 13. The appellate court held that the video recording did not derive from eavesdropping activity. Id. ¶ 16. Rather, the video recording was made at the same time as the audio recording, so that the video was independent of the audio recording. Id. In addition, because the informant was a party to the conversation, he did not eavesdrop. Id. Consequently, the video recording and the informant's testimony were both admissible. Id.

¶ 8 Presiding Justice Lytton dissented, noting that the eavesdropping statute expressly adopted the fruit of the poisonous tree doctrine in providing that any evidence obtained in violation of the statute is not admissible in any civil or criminal trial. Id. ¶ 22, (Lytton, P.J., dissenting). The dissent explained that the fruit of the poisonous tree doctrine holds that an unlawful search taints not only the evidence obtained from the unlawful search but also evidence derivative of the search. Id.

¶ 9 The dissent acknowledged that the exclusionary rule does not extend to evidence obtained from an independent source and that the independent source doctrine allows the admission of evidence discovered by means wholly independent of unlawful activity. Id. ¶¶ 23, 25. The dissent, however, disagreed with the majority that the video portion of the drug transaction and the confidential informant's testimony in this case were "independent sources" of evidence. Id. ¶ 30. The dissent would find that the video portion of the recording was a part of, and was not separate from, the illegal recording. Id. Likewise, testimony from the confidential informant was not "separate from the illegal recording because the informant was responsible for the illegal recording and would not have engaged in any conversation with defendant but for the presence of the recording equipment." Id. For those reasons, the dissent would find the video portion of the recording and the confidential informant's testimony to be tainted by the illegal activity and, therefore, inadmissible.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant asks this court to reverse the appellate court and reinstate the trial court's order granting defendant's motion to suppress the video portion of the drug transaction, as well as the confidential informant's testimony. As in the lower courts, the parties agree that the audio recording of defendant's transaction with the confidential informant violated the eavesdropping statute and was not admissible under section 14-5 of the Code.

¶ 12 When reviewing a circuit court's ruling on a motion to suppress, a reviewing court gives great deference to the circuit court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence. People v. Luedemann , 222 Ill. 2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). However, a circuit court's ultimate legal ruling on whether suppression is warranted

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is subject to de novo review. Id. Because the issue in this case concerns the circuit court's ultimate ruling on whether suppression was warranted, our review is de novo.

¶ 13 The offense of eavesdropping is set forth in article 14 of the Code (720 ILCS 5/art. XIV (West 2018)), which is referred to as the eavesdropping statute. The eavesdropping statute provides, in pertinent part, that:

"(a) A person commits eavesdropping when he or she knowingly and intentionally:

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(2) Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation." Id. § 14-2(a)(2).

An eavesdropping device is defined as "any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications

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