People v. Gervasi

• Decision Date: 24 November 1980
• Docket Number: No. 79-820,79-820
• Citation: 90 Ill.App.3d 1117,414 N.E.2d 91,46 Ill.Dec. 369
• Parties: , 46 Ill.Dec. 369 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John GERVASI and Michael Ettinger (Impleaded), Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 91

414 N.E.2d 91

90 Ill.App.3d 1117, 46 Ill.Dec. 369

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John GERVASI and Michael Ettinger (Impleaded), Defendants-Appellees.

No. 79-820.

Appellate Court of Illinois, First District, First Division.

Nov. 24, 1980.

Bernard Carey, State's Atty. of Cook County, Marcia B. Orr and Joel A. Eisen-Stein, Asst. State's Attys., Chicago, for plaintiff-appellant.

Neville, Pappas & Mahoney, Chicago, for Gervasi; Ronald F. Neville, George Pappas and Anthony J. Onesto, Chicago, of counsel.

Sam Adam and Edward M. Genson, Chicago, for Ettinger.

McGLOON, Justice:

Defendants John Gervasi and Michael Ettinger were charged by indictment with bribery, solicitation, and conspiracy. The evidence which implicated the defendants included telephonic and in-person conversations between defendants and a police officer. All of the telephone conversations were made from or received at the officer's home. All of the in-person conversations took place at the officer's home. The telephone conversations were overheard by court reporters who listened on an extension telephone from which the speaking device had been removed. The in-person conversations were overheard by court reporters without the use of any listening device. The reporters recorded all of the conversations on a stenographic machine.

Prior to trial, on defendants' motion, the trial court held that the altered extension phone, used in conjunction with a court reporter's stenographic machine, was an eavesdropping device within the contemplation of Ill.Rev.Stat.1977, ch. 38, par. 14-1. The court entered an order suppressing all of the transcripts of the overheard conversations the testimony of the court reporters regarding the conversations they overheard, and the testimony of the police officer regarding the conversations he had with defendants. The State appeals that order.

We affirm in part and remand with directions.

On appeal, the State argues that the trial court erred (1) in determining that an eavesdropping device was used, and (2) in suppressing the following items of evidence: the transcripts of the telephonic and in-person conversations; the prospective testimony of Officer Furay and the court reporters regarding the telephonic conversations, and; the prospective testimony of Officer Furay and the court reporters regarding the in-person conversations.

On October 8, 1977, Charles Soteras was arrested by Blue Island police officer Daniel Furay. Defendant Gervasi was called to the police station to represent Soteras. Gervasi told Furay that he would contact Furay in the near future. On November 21, 1977, Furay received a business card from Gervasi. Written on the back of the card was the message "Danny, Going out of town Saturday, Sunday, Monday. Will return Tuesday afternoon. Could you please call, I would like to talk to you." Believing that he would be offered money to help Soteras in his pending criminal case, Furay contacted the Cook County State's Attorney's office and advised two assistant State's Attorneys of his suspicions.

At the time Furay contacted the State's Attorney to report the possible impropriety, Gervasi was on the list of candidates for associate judge of Cook County. The State feared that a request for judicial authorization to eavesdrop would result in a leakage to Gervasi of the fact that he was under investigation. So rather than obtaining judicial permission, the State decided to devise a scheme which it felt would enable it to eavesdrop without violating the statute requiring judicial authorization.

The facts concerning the manner in which the evidence was gathered by the State were presented to the trial court by stipulations of the parties. The stipulations disclose that between November 27 and December 19, 1977, defendant Gervasi had a total of 23 telephone conversations with Officer Furay. Within the same period, defendant Ettinger had 6 telephone conversations with Furay.

Of the 23 telephone conversations between defendant Gervasi and Furay, 3 were initiated by Furay from his home. The other 20 were initiated by Gervasi. On all 23 occasions, a shorthand reporter employed by the State's Attorney's office was present and listened to the conversations on an extension telephone in Furay's home. Each time, a reporter removed the speaking mechanism on the extension telephone and recorded the conversation on a shorthand machine.

Gervasi also visited Furay at his home on three occasions. On each occasion, a shorthand reporter was secreted in a location inside the house where he could overhear the conversation between the two and record it on a shorthand machine.

Of the six telephone conversations between defendant Ettinger and Furay, five were initiated by Ettinger and answered by Furay at his home. The other one was made by Furay from the State's Attorney's office. Each time Ettinger called Furay at home, a shorthand reporter employed by the State's Attorney's office was present and listened to and recorded the conversation. The same technique was used to record the call made from the State's Attorney's office.

Defendant Gervasi moved to suppress all transcripts and/or testimony regarding any conversations to which he was a party. He alleged that the conversations were the subject of illegal eavesdropping in violation of Ill.Rev.Stat.1977, ch. 38, par. 14-2. Defendant Ettinger then joined in Gervasi's motion to suppress.

After hearing argument on the motion, the trial court held that an eavesdropping device as defined by Ill.Rev.Stat.1977, ch. 38, par. 14-1, had been employed to transcribe the telephone conversations. Without regarding the transcripts of any of the conversations, either telephonic or in-person, the trial court entered an order suppressing the transcripts of both the telephonic and in-person conversations. Additionally, the trial court entered an order suppressing the prospective testimony of the court reporters regarding both the telephonic and in-person conversations and the prospective testimony of Officer Furay regarding both the telephonic and in-person conversations.

Two statutory provisions are pertinent to our discussion of the facts in this case. Ill.Rev.Stat.1977, ch. 38, par. 14-1 defines an eavesdropping device as:

" * * * any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing."

Ill.Rev.Stat.1977, ch. 38, par. 108A-1 provides that:

"(t)he State's Attorney may authorize an application to a circuit judge for, and such judge may grant in conformity with this Article, an order authorizing or approving the use of an eavesdropping device by a law enforcement officer or agency having the responsibility for the investigation of any felony under Illinois law where any one party to a conversation to be monitored, or previously monitored in the case of an emergency situation as defined in this Article, has consented to such monitoring."

First, the State contends that the trial court erred in determining that an eavesdropping device was used and that since no eavesdropping device was used, no judicial authorization was necessary.

Illinois cases have consistently held that when a person listens with his unaided ear to a telephone on which a conversation is in progress, this listening does not constitute the use of an eavesdropping device. (See People v. Giannopoulos (1974), 20 Ill.App.3d 338, 314 N.E.2d 237; People v. Brown (1970), 131 Ill.App.2d 244, 266 N.E.2d 131; People v. 5948 West Diversey Avenue, Second Floor Apartment (1968), 95 Ill.App.2d 479, 238 N.E.2d 229.) In none of these cases, however, was the telephone tampered with in any way. Therefore, the question with which we are concerned is whether a telephone with the speaking device removed, used in conjunction with a stenographic machine, is still a telephone.

A telephone is a dual purpose treatment. It is an apparatus consisting of a transmitter for converting sounds into electrical impulses and a receiver for reproducing the original sounds from...