People v. Nieves

• Decision Date: 22 October 1982
• Docket Number: No. 55681,55681
• Citation: 86 Ill.App.3d 186,442 N.E.2d 228,65 Ill.Dec. 917,92 Ill.2d 452
• Parties: , 65 Ill.Dec. 917 The PEOPLE of the State of Illinois, Appellant, v. Americo NIEVES, Appellee.
• Court: Illinois Supreme Court

Page 228

442 N.E.2d 228

92 Ill.2d 452, 65 Ill.Dec. 917

The PEOPLE of the State of Illinois, Appellant, v. Americo NIEVES, Appellee.

No. 55681.

Supreme Court of Illinois.

Oct. 22, 1982.

Robert Agostinelli, Deputy State Appellate Defender, Stephen H. Omolecki, Asst. State Appellate Defender, Third Judicial Dist., Ottawa, for appellee.

Tyrone C. Fahner, Atty. Gen., Herbert Lee Caplan, Melbourne A. Noel, Jr., Thomas E. Holum, Kenneth A. Fedinets, Asst. Attys. Gen., Chicago, John X. Breslin, Deputy Director, Kenneth A. Wilhelm, Staff Atty., State's Attys. Appellate Service Com'n, Ottawa, for appellant; Edward F. Petka, State's Atty., Joliet, of counsel.

THOMAS J. MORAN, Justice:

Following a jury trial in the circuit court of Will County, Americo Nieves was convicted of the unlawful delivery of more than 15 grams of a substance containing heroin and sentenced to 30 years in prison. The appellate court held that the admission into evidence of tape-recorded phone conversations was error, due to the State's failure to comply with section 108A-7(b) of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1977, ch. 38, par. 108A-7(b)). The court, therefore, reversed defendant's conviction and remanded the cause for a new trial. (99 Ill.App.3d 447, 54 Ill.Dec. 695, 425 N.E.2d 560.) We granted leave to appeal.

The issues are: (1) Was suppression of recorded conversations between an undercover officer and defendant required by article 108A of the Code (Ill.Rev.Stat.1977 ch. 38, pars. 108A-1 to 108A-11)? (2) Did defendant knowingly waive his right to counsel in the absence of a proper admonishment?

The facts are uncontroverted. On January 12, 1978, the trial court granted the State's request for an order allowing the use of an eavesdropping device pursuant to article 108A. The order permitted eavesdropping from 6 p.m., January 12, to 6 p.m., January 22, 1978. On January 12, the consenting party to the eavesdrop, undercover narcotics officer Joseph Andalina, tape recorded a telephone conversation with defendant relating to a purchase of five to eight ounces of heroin. Andalina also recorded a telephone conversation with defendant at noon on the following day, at which time they agreed to a delivery at 3 p.m. that day. At approximately 4:30 p.m., defendant arrived at a prearranged parking lot and delivered several plastic bags of a brown powder, for which the officer paid defendant $1,300 in marked currency. Defendant was arrested at the scene by other officers who also recovered approximately 99.5 grams of additional heroin in bags found near a garbage can.

Prior to trial, defendant filed a motion to suppress the recordings of the telephone conversations. At the hearing on the motion, the State stipulated to the facts contained in the first five paragraphs of defendant's motion, which were as follows:

"1. That the Illinois Revised Statutes, Chapter 38, Section 108A-7(b) states that immediately after the expiration of the period of an Order allowing eavesdropping all recordings shall be made available to the Judge issuing the order.

2. That the Order issued by Judge Robert Buchar on January 12, 1978 allowed eavesdropping from that date until January 22, 1978.

3. That the recordings made pursuant to said order were not immediately made available to Judge Buchar and in fact were not reviewed by him until February 8, 1978.

4. That the passage of 16 days from the termination of the date of the order of January 12, 1978 is a period of time of such duration as to fall outside of the immediacy requirement of Chapter 38, Section 108A-7(b).

5. That the order entered January 12, 1978 by Judge Robert Buchar was improperly granted and that it contains no specific statements as to whether or not the use shall automatically terminate when the described conversations have been first obtained as is required under Chapter 38, Section 108A-5(a)(3)."

Also at the hearing, Andalina testified that only the conversations of January 12 and 13, 1978, were recorded, and that the eavesdrop was discontinued after the second day of the 10-day authorized period. Andalina also testified that he retained custody of the tape recordings from January 13 to the time they were turned over to the State's Attorney's office and to Judge Buchar. On February 8, the recordings were brought before the trial judge for review and sealing. The trial court denied the motion to suppress and, at trial, the tapes were admitted into evidence and played to the jury.

The State argues that where, as here, the tapes were judicially sealed 16 days after expiration of the order, article 108A does not require the tapes to be suppressed. Defendant argues that the State's admitted failure to "immediately" turn over the tapes for sealing under section 108A-7(b) prevents disclosure of the recordings.

Section 108A-7 provides:

"Retention and Review of Recordings.

(a) The contents of any conversation overheard by any eavesdropping device shall, if possible, be recorded on tape or a comparable device. The recording of the contents of a conversation under this Article shall be done in such a way as will protect the recording from editing or other alterations.

(b) Immediately after the expiration of the period of the order or extension or, where the recording was made in an emergency situation as defined in Section 108A-6, at the time of the request for approval subsequent to the emergency all such recordings shall be made available to the judge issuing the order or hearing the application for approval of an emergency application.

The judge shall listen to the tapes, determine if the conversations thereon are within his order or were appropriately made in emergency situations, and make a record of such determination to be retained with the tapes.

The recordings shall be sealed under the instructions of the judge and custody shall be where he orders. Such recordings shall not be destroyed except upon order of the judge hearing the application and in any event shall be kept for 10 years if not destroyed upon his order.

Duplicate recordings may be made for any use or disclosure authorized by this Article. The presence of the seal provided for in this Section or a satisfactory explanation for the absence thereof shall be a pre-requisite for the use or disclosure of the contents of the recordings or any evidence derived therefrom." (Ill.Rev.Stat.1977, ch. 38, par. 108A-7.)

Section 108A-9 provides:

"Motion to Suppress Contents of Recording, etc.

(a) Any aggrieved person in any judicial or administrative proceeding may move to suppress the contents of any recorded conversation or evidence derived therefrom on the grounds that:

(1) the conversation was unlawfully overheard and recorded;

(2) the order of authorization or approval under which the device was used or a recording made was improperly granted; or

(3) the recording or interception was not made in conformity with the order of authorization." (Ill.Rev.Stat.1977, ch. 38, par. 108A-9.)

The State contends that the failure to "immediately" turn over the tapes to the issuing judge under section 108A-7(b) does not require suppression under section 108A-9. Thus, although the State concedes it failed to adhere to the immediacy requirement, it argues that, in this case, the 16-day delay following expiration of the order was a "technical violation" that did not merit suppression.

This issue has not been addressed previously by this court. However, the effect of failure to adhere to the immediacy requirement of the similarly worded Federal counterpart to the Illinois act has been the subject of considerable analysis in the Federal circuit courts of appeal. Section 2518(8)(a) in title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. sec. 2518(8)(a) (1976)) provides:

"The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents * * * shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. * * * The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom."

Section 2518(10)(a) in title III provides in part:

"Any aggrieved person in any trial, hearing, or proceeding in or before any court * * * may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that--

(i) the communication was unlawfully intercepted;" (18 U.S.C. sec. 2518(10)(a)(1976).)

As noted above, the wording in the Federal and Illinois statute is virtually identical in all pertinent respects.

The United States Supreme Court in United States v. Chavez (1974), 416 U.S. 562, 574-75, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380, 392, made clear that not every failure to comply fully with any requirement in title III would render the communication unlawful under 2518(10)(a)(i). That section has been interpreted by the Supreme Court to require suppression "where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974), 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341, 360.) The Ninth Circuit Court of Appeals in United States v. Chun (9th Cir.1974) 503 F.2d 533, 541-42, interpreted Chavez and Giordano as setting forth the following test in resolving whether failure to...