People v. DeLaire

• Decision Date: 28 January 1993
• Docket Number: 2-90-0954,Nos. 2-90-0953,s. 2-90-0953
• Citation: 610 N.E.2d 1277,240 Ill.App.3d 1012,183 Ill.Dec. 33
• Parties: , 183 Ill.Dec. 33 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Edward DeLAIRE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1277

610 N.E.2d 1277

240 Ill.App.3d 1012, 183 Ill.Dec. 33

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Edward DeLAIRE et al., Defendants-Appellees.

Nos. 2-90-0953, 2-90-0954.

Appellate Court of Illinois Second District.

Jan. 28, 1993.

Rehearing Denied March 5, 1993.

James E. Ryan, DuPage County State's Atty., Barbara A. Preiner, Supervisor of Appeals, DuPage Co. S.A.'s Office, Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Mary Beth Burns, SAAP Elgin, Elgin, for the People.

Jerome Rotenberg, Chicago, George P. Lynch, George Patrick Lynch, Ltd., Downers Grove, for Edward DeLaire.

Justice UNVERZAGT delivered the opinion of the court:

The State appeals the order of the circuit court of Du Page County which suppressed evidence seized pursuant to a search warrant and the defendants' message unit detail (MUD) records obtained by a post-indictment grand jury subpoena. The circuit court entered an order of suppression in the causes against each defendant, Edward DeLaire and Donald Rippin. The appeals were consolidated because of the common facts and issues. The State contends the circuit court first erred in finding that citizens have a privacy interest in MUD records. Second, the State argues that the circuit court erred when it held that the evidence should be suppressed because the search warrant was obtained through a diversion of private information obtained by a grand jury subpoena duces tecum. The defendants also contend that the MUD records should be suppressed because the telephone company was not personally served with the subpoenas; that one subpoena was invalid because the grand jury had already completed its investigation, when the subpoena was issued and served; that the search warrants authorizing the search of their residences were vague; and that the police failed to knock and announce their presence before entering Rippin's residence. All but the last two issues are of first impression in Illinois.

I

On December 1, 1989, the grand jury indicted Rippin for syndicated gambling, keeping a gambling place, and conspiracy to commit gambling (Ill.Rev.Stat.1989, ch. 38, pars. 28-1.1(d), 28-3, 28-1(a)(11), 8-2(a)). The grand jury indicted DeLaire with conspiracy to commit gambling and syndicated gambling. Other than the testimony regarding the actual breaking into Rippin's residence, the trial court heard no evidence. It relied on the face of the complaint for the search warrant, the seven subpoenas duces tecum, an affidavit from the keeper of records at the telephone company, and the prosecutor's admissions.

On November 11, 1989, Detective David Wall of the Addison police department swore the allegations of the complaint for the search warrant. According to the complaint, on September 14, 1989, he received a telephone call from a woman who wished to remain anonymous. She claimed her husband was placing bets with Donald Rippin on the outcome of sporting events. Her husband would telephone Rippin's paging number, and Rippin would then call him. She told Wall the numbers. She also stated that Rippin worked for a man called "Fast Eddy." The caller gave Rippin's address and said he lived there with his girlfriend, "Toots." The tipstrix gave Toots' telephone number.

Wall checked the telephone number and determined that it was registered to Bernice Bauer at the address provided by the tipstrix. He went to the address and saw a car registered to Bauer and a pickup truck registered to a Donald Rippin of that address. On October 7, 18, and 28, Wall followed Rippin as he drove to DeLaire's house in Villa Park. On October 14, Wall saw Rippin meet briefly with two men in cars. Wall checked their license plate numbers with the Secretary of State and determined they were registered to people with addresses in Hanover Park and Elmhurst. Wall and other detectives also conducted surveillance on Rippin's residence and noticed that he did not leave his location during the hours they suspected he was accepting wagers, namely, Saturday, October 21, 1989, 7:30 a.m. to 12 p.m.; Sunday, October 22 from 9:09 a.m. until 3:34 p.m.; and Monday, October 23 from 5:45 p.m. until 8 p.m. On the Sunday, Wall followed Rippin to a trailer home in Bartlett; Rippin drove a circuitous route, made a U-turn, and doubled back before entering the trailer.

These facts comprised the first two of the eight pages of the complaint for the search warrant. The trial court ruled that these facts alone were not sufficient to justify a search of the defendants' residences. The trial court ruled that the facts which follow did create probable cause to believe the defendants were committing gambling crimes; however, because these facts show Wall improperly relied upon the grand jury's MUD records, the trial court considered the evidence tainted and suppressed the evidence discovered during the execution of the warrant.

In his complaint, Wall next stated he reviewed the MUD records, but he did not reveal how he obtained them. The MUD records showed the numbers of all the telephone calls that originated from Rippin's Addison residence from October 20 through 24 and the duration of the calls. On October 21, 1989, that phone originated 44 calls from 10 a.m. to 6:35 p.m., and most calls lasted less than a minute. The phone originated three calls to a number which Wall, upon further inquiry, determined was registered to the Hanover Park man. The phone also originated seven calls to another number, which Wall determined was owned by Score Board, Inc. Wall called that number and heard a recording of the scores of various sporting events.

Wall reviewed the MUD records for the Bartlett trailer from Sunday, October 22. The telephone there originated 70 calls before 3 p.m. The calls were of short duration, often less than a minute. Some of the calls were to numbers Wall determined were registered to the men with the addresses in Hanover Park and Elmhurst with whom Rippin had met the prior week.

Wall determined that the Chicago Bears football team played a game on Monday evening, October 23. From 4:45 to 7:02 p.m., 48 calls were placed from the phone in Rippin's Addison residence. The first and last calls were made to a number Wall later determined was registered to DeLaire.

Wall conducted a similar surveillance and MUD record study for Sunday, October 29, during which Rippin did not leave the residence. At the residence in Addison, 81 calls were placed between 9:55 a.m. and 3:10 p.m., including five to DeLaire's number and seven to Score Board, Inc. A similar pattern was shown on other dates. Wall checked the MUD records for DeLaire's address and found several calls from Rippin's address and several to Score Board, Inc. The records also showed a call to a different number, which Detective Simo called. The man who answered the call said that he provided sports information, such as the "Line," to paid subscribers and that his address was in Las Vegas, Nevada.

Wall spoke with a sergeant from the Illinois State Police who said that Rippin and DeLaire were convicted of syndicated gambling in Du Page County in May 1986 and were coconspirators. The sergeant also said DeLaire used the name "Fast Eddy." Wall spoke with a sergeant of the Du Page County sheriff's office, who related that he observed DeLaire accepting bets over the telephone in a bar where he would make payments to patrons. On November 11, Sergeant Gorniak of the Addison police department followed DeLaire to a lounge in Lombard. The public phone rang six times, and DeLaire answered each call. Two calls were for other patrons. During the other four calls, DeLaire spoke less than a minute. He also wore a pager.

Wall concluded that, based on his experience, the defendants' behavior was consistent with the modus operandi of men running a wire room. In his experience, telephone calls used to place wagers are very short in duration. He concluded that they were accepting bets on Saturday collegiate and Sunday and Monday professional football games.

The judge granted the search warrant, which the police executed on November 12. Wall broke down Rippin's door with a battering ram and caught him with a telephone in his hand. The police seized currency, four envelopes, including one containing water-soluble paper, three football line sheets, an envelope containing gambling records, ripped gambling records, records of the status of the accounts of the bettors, other records and two pagers.

The defendants brought a motion to suppress the evidence. They introduced an affidavit of the keeper of records at Illinois Bell Telephone Company (Bell). She stated that Bell will produce MUD records to law enforcement officials only when they supply a subpoena. The records will be mailed to a subscriber upon his request.

During Wall's investigation, the clerk of the circuit court for Du Page County had issued seven subpoenas duces tecum to the sheriff to serve on Bell. The subpoenas required Bell to appear before the grand jury on a specified date with the specified MUD records. The State's Attorney's name appeared on the bottom of the subpoenas. The return showing service of the subpoena was left blank on all but the first and last subpoena. Instead, the others bear an unsigned notation such as "sent by regular mail 10-16-89." Some bear a notation that the sending of the subpoena was only a confirmation of a previous oral request. The November 6 subpoena, requiring an appearance on November 8, was mailed November 9, but it bore a note that it was only a confirmation of Wall's telephonic request.

The seventh subpoena was dated January 2, 1990, and commanded an appearance on January 17, 1990. These dates followed the indictment. The first subpoena was dated September 21, 1989, but it sought only the basic subscriber information for the Addison address. The other subpoenas were issued October 16, 19, 26, 31, and November 6, 1989. They commanded Bell's...