People v. Monoson

• Decision Date: 10 August 1979
• Docket Number: No. 78-561,78-561
• Citation: 75 Ill.App.3d 1,30 Ill.Dec. 892,393 N.E.2d 1239
• Parties: , 30 Ill.Dec. 892 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gilbert MONOSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1239

393 N.E.2d 1239

75 Ill.App.3d 1, 30 Ill.Dec. 892

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gilbert MONOSON, Defendant-Appellee.

No. 78-561.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 10, 1979.

[30 Ill.Dec. 894] Bernard Carey, State's Atty., Chicago (Lee T. Hettinger, Wendy S. Paul, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellant

George J. Cotsirilos, Robert M. Stephenson, Chicago (George J. Cotsirilos & Associates, Ltd., Chicago), for defendant-appellee.

WILSON, Justice:

This is an appeal by the State from an order suppressing electronic surveillance evidence purportedly obtained under the authority of sections 108A-1 Et seq. of the Criminal Code (Ill.Rev.Stat.1977, ch. 38, par. 108A-1 Et seq.) (hereinafter the Illinois Eavesdropping Act). The sole issue is whether the trial court properly suppressed two tapes of electronically overheard and recorded conversations. We affirm the trial court. The pertinent evidence follows.

On July 22, 1976, Raymond Stockholm, a law enforcement officer employed by the Cook County State's Attorney's Office, executed an application for a court order authorizing the use of an eavesdropping device to overhear and record conversations between George Carpin and defendant between 12:10 p.m., July 22, and 10 a.m., July 26, 1976. The application stated under oath Stockholm's belief that the felonies of bribery and official misconduct were being or would be committed. Stockholm's application further alleged:

"GEORGE CARPIN, owner of G.E.C. Industries, a steel processing plant located at 422 Mercantile, Wheeling, Illinois, is in violation of Wheeling Ordinances which require either a firewall or a sprinkling system in the plant. If George Carpin halts production in his plant he will lose his contract with General Motors. The Trustees of the Village of Wheeling voted down the variance in June of 1976. On July 21, 1976, Gilbert Monoson told George Carpin that if George Carpin would give him (Gilbert Monoson) a $10,000 unsecured, interest free loan, Gilbert Monoson told George Carpin that he (Monoson) will do everyting (sic) he (Monoson) can do to get the needed zoning variance."

The application did not reveal how Stockholm had come into possession of the facts stated in the application. This document was submitted to the authorizing Judge together with a form captioned "State's Attorney's Authorization for Application for Approval of Use of Eavesdropping Device" signed by Assistant State's Attorney Nicholas Iavarone, who stated that he, knowing of Carpin's consent to the electronic eavesdropping "received Bernard Carey's authorization and consent in a phone call at 9:43 a.m. on July 22, 1976." The form was signed by Iavarone at 10:02 a.m. Also tendered to the authorizing Judge was a form entitled "Consenting Party," signed by Stockholm. This form stated that Stockholm had received consent from Carpin to have conversations between Carpin and defendant recorded. Stockholm indicated on the form, however, that he received Carpin's consent at 10:07 a.m. The form was signed by Stockholm at 10:10 a.m. The authorizing Judge signed an order allowing the use of the eavesdropping device as requested On July 26, Stockholm applied for an extension of the July 22 order until 10 a.m. on July 28, 1976. The application stated, in pertinent part:

[30 Ill.Dec. 895] in the application. A conversation between Carpin and defendant was later overheard and recorded.

"The following results have so far been obtained: The target, Gilbert Monoson, did meet George Carpin at the offices of GEC Industries in Wheeling, Illinois, and requested a $10,000.00 unsecured loan in return for which Monoson would do his best to help Carpin receive an occupancy permit.

It is necessary to extend the order . . . because Gilbert Monoson will be at the zoning meeting on July 26, 1976. This is the meeting where Monoson agreed to do "his best" to help Carpin receive his permit in return for a $10,000 loan. Carpin will meet Monoson before and after this meeting.

Based on the following facts, (the State) . . . request(s) that the order for the use of an eavesdropping device not terminate automatically when the above conversation is overheard and/or recorded because (it has) reasonable grounds to believe that additional conversations of the same type may occur: After the zoning committee meeting on July 26, 1976, Gilbert Monoson will probably arrange for a meeting to receive the $10,000.00."

Similar to the July 22 application, Stockholm signed as the applicant, but the July 26 application was not made under oath. This application was submitted to the authorizing Judge with a form for an "Extension of Order for Use of an Eavesdropping Device," signed by Iavarone. In the form it was stated that Iavarone, knowing of Carpin's consent to the electronic eavesdropping, had received consent and request of State's Attorney Carey by phone at 9:31 a.m. on July 26 to petition the court for an extension. This form was signed by Iavarone at 9:55 a.m. In addition, a form entitled "Consenting Party," signed by Assistant State's Attorney Crystal, was submitted with the application. The document stated that Carpin gave his consent to have "the above conversation recorded at 9:36 a.m." on July 26. This form was signed by Crystal at 9:56 a.m. The authorizing Judge signed an order allowing the extension. Subsequently, a second conversation between Carpin and defendant was overheard and recorded.

Defendant was thereafter charged in a five count indictment in July 1977 with three counts of bribery and two counts of official misconduct. Ill.Rev.Stat.1977, ch. 38, pars. 33-1 and 33-3.

Defendant's counsel was granted permission to listen to both tapes. Before trial, defendant filed a motion to suppress the contents of the two conversations that were electronically overheard and recorded. He alleged: (1) that the July 22 and 26 orders of authorization were invalid because examination of the applications revealed that Carpin's consent was not received until after the purported authorizations of State's Attorney Carey; (2) that concerning the July 22 application, the State's Attorney's authorization form, showing Carpin's consent, was executed before Carpin actually consented and was, therefore, defective; (3) that the two applications were insufficient for failure to set forth facts that would satisfy the standards of "reasonable cause" or "probable cause," which terms under Illinois law are synonymous, in that the applications did not contain facts regarding the source of the information recited or of the circumstances from which Stockholm could conclude that the offenses of bribery or official misconduct were being or were about to be committed; and (4) that even if the "reasonable cause" standard means something less than "probable cause," the facts alleged in the original application failed to establish reasonable cause for believing that defendant was committing or was about to commit the offenses of bribery or official misconduct.

In an effort to correct the alleged defect with regard to the time of Carpin's consent In granting the motion, the trial court filed a written opinion with the order. Attached as appendices to the opinion are a copy of the original legislative bill before the exercise of then Governor Walker's amendatory veto and a letter from Governor Walker to the House of Representatives in which he explained his reasons for recommending changes in the original bill as submitted to him. It was the trial court's opinion that both the taped conversations authorized by the July 22 and 26 court orders were electronically overheard and recorded in violation of the Illinois Eavesdropping Act. Ill.Rev.Stat.1977, ch. 38, par. 108A-1 Et seq.

[30 Ill.Dec. 896] to the applications, the State filed two stipulations. The stipulations stated that Carpin consented to the electronic eavesdropping on July 22 prior to 10:02 a.m.; that Iavarone informed the State's Attorney of Carpin's consent on that date at approximately 10:02 a.m.; that Carpin consented to the electronic eavesdropping on July 26 prior to 9:55 a.m.; and that Iavarone informed State's Attorney Carey of Carpin's consent on [75 Ill.App.3d 5] that date at approximately 9:55 a.m. Thus, the stipulations appear to contradict Iavarone's statements on the supporting papers. Nevertheless, the motion to suppress was granted.

OPINION

The State contends that the trial court improperly suppressed the results of the electronic eavesdropping which was authorized by the July 22 and 26 court orders. Specifically, the State argues that Stockholm's applications of July 22 and 26 established "reasonable cause" to warrant authorization of the eavesdropping. We cannot agree.

Defendant argues that both the July 22 and 26 court orders were issued in violation of the Illinois Eavesdropping Act. The trial court sustained the motion to suppress for the reason that the application did not contain facts and circumstances establishing reasonable cause to believe defendant was committing, had committed, or was about to commit the felonies of bribery and official misconduct. Because we concur with this reason, we find it unnecessary to discuss questions involving the effect of the State's apparent failure to comply with the procedural provisions of the statute as evidenced by the supporting documents indicating that Carpin gave his consent after State's Attorney Carey authorized the application and the curative effect of the two stipulations filed by the State.

In People v. Porcelli (1974), 25 Ill.App.3d 145, 149, 323 N.E.2d 1, 4, this court, in construing the eavesdropping statute that is the predecessor of the present statute (Ill.Rev.Stat.1971, ch. 38, par. 14-1 Et seq.), stated that the statutory restraints on electronic eavesdropping and the mandate of our State Constitution "demand the strict construction of the statute and...