People v. Hammer

• Decision Date: 15 November 1984
• Docket Number: No. 2-83-0864,2-83-0864
• Citation: 84 Ill.Dec. 86,128 Ill.App.3d 735,471 N.E.2d 615
• Parties: , 84 Ill.Dec. 86 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George HAMMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 615

471 N.E.2d 615

128 Ill.App.3d 735, 84 Ill.Dec. 86

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George HAMMER, Defendant-Appellant.

No. 2-83-0864.

Appellate Court of Illinois, Second District.

Nov. 15, 1984.

G. Joseph Weller, Deputy State Appellate Defender, Josette Skelnik, Kathleen J. Hamill, Asst. State Appellate Defenders, Elgin, for defendant-appellant.

Daniel Doyle, State's Atty., Rockford, Phyllis J. Perko, Judith M. Pietrucha, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

LINDBERG, Justice.

Defendant-appellant, George Hammer, appeals from an order of the circuit court of Winnebago County denying his motion to suppress evidence obtained from court-approved use of an eavesdropping device to record defendant's phone conversation. Defendant contends the trial court erred because reasonable cause did not exist to believe either that defendant had committed a felony or that relevant conversations would be overheard. Because we find that the State's eavesdropping application was sufficient to establish reasonable cause, we affirm.

Defendant was charged by indictment on January 11, 1983, with the offense of arson. While defendant was originally charged in two counts, the State later dismissed Count I but proceeded to try defendant on Count II which alleged that defendant, Harley Robert Climer, Sr. (Climer, Sr.), Harley Robert Climer, Jr., (Climer, Jr.), and Clifford Eugene (Jack) Messenger (Messenger) knowingly, by means of fire, damaged real property located at 1122 Emerald Lane, Machesney Park, Winnebago County, with the intent to defraud an insurer.

Preceding the indictment on December 17, 1982, Steven D. Crow, a law enforcement officer employed by the Illinois Division of Criminal Investigation, filed an Application For An Order For Use Of An Eavesdropping Device accompanied by two affidavits: one filed by Crow and the other by Ronda Jean Varble, an acquaintance of defendant. That same day, the trial court issued an order allowing law enforcement personnel to use an eavesdropping device to overhear certain conversations between Varble and defendant. Based upon this order, certain conversations were overheard and thereafter, defendant filed his Motion to Suppress Evidence on March 17, 1983, contending that the State's application was insufficient to establish reasonable cause (see Ill.Rev.Stat.1981, ch. 38, par. 108A-4), and contained only accusations based upon hearsay.

After hearing oral arguments, the trial court filed an order on April 27, 1983, denying defendant's suppression motion and finding that the supporting affidavits set forth reasonable and probable cause for the issuance of the eavesdropping order. However, the trial court did suppress portions of the taped conversations which it concluded were either irrelevant, inflammatory or prejudicial to defendant.

The cause then proceeded to trial commencing on May 17, 1983, which resulted in a mistrial after the jurors failed to arrive at a verdict. The second trial commenced on July 18, 1983. After numerous witnesses testified including Crow and Varble who had provided the affidavits for the eavesdropping application, the jury on July 20, 1983, returned a guilty verdict. Defendant thereupon was sentenced to three years imprisonment.

Defendant contends that the trial court erred in denying his request to suppress the substance of a phone conversation between himself and Varble which was recorded through use of a court-authorized eavesdropping device. Specifically, defendant argues that the court's order authorizing use of the eavesdropping device violated sections 108A-4(b) and (c) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 108A-4(b) and (c)) because the order was not predicated on reasonable cause to believe that defendant had committed a felony or that relevant conversations would be heard.

Eavesdropping with one party's consent does not violate the fourth amendment to the United States Constitution. (United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453; People v. Swimley (1978), 57 Ill.App.3d 116, 124, 14 Ill.Dec. 608, 615, 372 N.E.2d 887, 894, cert. denied (1978), 439 U.S. 911, 99 S.Ct. 281, 58 L.Ed.2d 257.) Consequently, any restrictions placed on such one-party eavesdropping are statutory and not constitutional. (People v. Sylvester (1980), 86 Ill.App.3d 186, 190, 41 Ill.Dec. 504, 508, 407 N.E.2d 1002, 1006.) The statutes governing such eavesdropping are contained in article 108A of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, pars. 108A-1 et seq.). Section 108A-4 permits approval of the eavesdropping where "there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a felony under Illinois law; * * *." (Ill.Rev.Stat.1981, ch. 38, par. 108A-4(b).) Section 108A-4(c) authorizes approval if "there is reasonable cause for believing that particular conversations concerning that felony offense will be obtained through such use; * * *." Ill.Rev.Stat.1981, ch. 38, par. 108A-4(c).

Reasonable cause is present when the totality of facts and circumstances existing at the time are sufficient to warrant the belief by a man of reasonable conscience that an offense has been, is being, or will be committed. (People v. Woods (1984), 122 Ill.App.3d 176, 181, 77 Ill.Dec. 576, 580, 460 N.E.2d 880, 884; People v. Sylvester (1980), 86 Ill.App.3d 186, 194-95, 41 Ill.Dec. 504, 511, 407 N.E.2d 1002, 1009; see also People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356.) In determining the existence of reasonable cause, unlike the situations involving search warrants, courts are not "unduly technical." (People v. Sylvester (1980), 86 Ill.App.3d 186, 196, 41 Ill.Dec. 504, 514, 407 N.E.2d 1002, 1011.) An affidavit supporting an application for an eavesdropping order need not prove beyond a reasonable doubt that a crime has been committed or even establish a prima facie case. People v. Ellis (1984), 122 Ill.App.3d 900, 78 Ill.Dec. 62, 461 N.E.2d 646; People v. O'Dell (1980), 84 Ill.App.3d 359, 368, 39 Ill.Dec. 830, 838, 405 N.E.2d 809, 817.

Courts have interpreted the expression reasonable cause for purposes of the eavesdropping statute to be synonymous with probable cause. (People v. Wrestler (1984), 121 Ill.App.3d 147, 154, 76 Ill.Dec. 548, 552, 458 N.E.2d 1348, 1352; People v. Monoson (1979), 75 Ill.App.3d 1, 9, 30 Ill.Dec. 892, 899, 393 N.E.2d 1239, 1246.) Additionally, the "totality of the circumstances" test enunciated in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, for determining the existence of probable cause for issuance of a search warrant similarly is applicable to determine if reasonable cause exists for issuance of an order authorizing use of an eavesdropping device. People v. Wrestler (1984), 121 Ill.App.3d 147, 154-55, 76 Ill.Dec. 548, 552-53, 458 N.E.2d 1348, 1352-53.

In the instant case, the application executed by Crow requested authorization to overhear and record conversations which might occur between Varble and various people including defendant. In the application, Crow stated his belief that certain felonies including arson had been committed, that Varble had consented to use of an eavesdropping device during the conversations, and that the Winnebago County State's Attorney had authorized the application. Accompanying the application were two supporting affidavits by Crow and Varble. In his affidavit, Varble stated that he was in Climer, Sr.'s bedroom in December 1981 when Climer, Sr. was on the phone. Varble stated Climer was talking to Hammer and asked him "when the woman was going to get her insurance check." Varble stated that Climer, Sr. told Hammer that if he were not paid soon, Climer, Sr. was going to charge the woman a certain additional amount each week.

Varble further averred that approximately one week after the above discussion took place, Climer, Sr. told Varble that he would loan Varble $100 if Climer, Sr. first received his money from Hammer. In response to Varble's questioning about what Climer, Sr. was "into", Climer, Sr. stated, "It was an arson." During this same conversation, Climer, Jr. entered the room and told his father that he also needed the money. Varble testified that subsequent to this conversation, he heard at Climer, Sr.'s house on five or six occasions Climer, Sr. call Hammer "about the money that was owed him for the arsons." Varble was certain that the conversation he overheard was between Climer, Sr. and Hammer because Climer, Sr. told him so.

Crow also filed a supporting affidavit wherein he stated he interviewed Shirley Varble (Shirley) on December 2, 1982, regarding the arson of the house on Emerald Lane in Machesney Park, Illinois. Shirley, who is the sister of Climer, Sr. said Climer, Sr. told her that he had set fire to the house with Messenger and Climer, Jr. and that Hammer had hired Climer, Sr. to commit the arson. The affidavit further explicated that Shirley stated she was told by Climer, Sr. that he was angry because he had not yet received the money for the arson, and Shirley overheard Climer, Sr. arguing on the telephone with Hammer about the money, threatening to "burn him [Hammer] out just as he did the others" if he wasn't paid soon.

Crow also averred that Shirley told him that she heard Daisey Climer (Climer, Sr.'s wife) shout to her husband who was on the phone with Hammer that she would burn Hammer out if he didn't pay promptly. Crow also stated Shirley overheard an argument involving Robin Messenger, Climer, Jr.'s daughter, and Climer, Sr. concerning the fact that Messenger had not received his money for the arson. Shirley also told Crow that Climer, Jr. was angry because he had not been paid the amount he was supposed to receive for setting the fire.

Crow further averred that on December 2, 1982, he interviewed Patsy J. Gregory who told him that in late...