People v. Porcelli
| Decision Date | 21 November 1974 |
| Docket Number | No. 58730,58730 |
| Citation | 323 N.E.2d 1,25 Ill.App.3d 145 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Charles PORCELLI, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
George J. Cotsirilos and William J. Martin, Chicago, for defendant-appellee.
Bernard Carey, State's Atty., Kenneth L. Gillis, William K. Hedrick and John M. Cutrone, Asst. State's Attys., Chicago, for plaintiff-appellant.
An assistant State's Attorney taperecorded a telephone conversation between a Glencoe policeman and a Chicago lawyer. In the conversation the lawyer renewed a prior $300 offer he had made to the officer if the officer would change his report in reference to a chent of the lawyer whom he had arrested. The electronic eavesdropping was purportedly done under the authority of Ill.Rev.Stat., 1971, ch. 38, para. 14--2. The lawyer was indicted for bribery (Ill.Rev.Stat., 1971, ch. 38, para. 33--1). At his trial, the court suppressed the recorded conversation and the evidence of the events that followed it. The State thereupon struck the case with leave to reinstate and appealed.
The issues presented are these: whether the State complied with the requirements of the statute; whether the statute is constitutional; whether the eavesdropping violated the Fourth Amendment to the Constitution of the United States or Article I, section 6 of the Illinois Constitution of 1970, and whether the evidence obtained subsequent to the recording should have been suppressed.
Anthony Ormiston was arrested for driving a vehicle while under the influence of intoxicating liquor. The arresting officer, Russell Strutz of the Glencoe, Illinois, police force, tested Ormiston to determine the degree of his insobriety and his ability to drive an automobile. In reporting the results of his visual examination Strutz stated that Ormiston was unsure in turning and completely missed his nose when he tried to touch it with his finger.
At the hearing on the motion to suppress, an offer of proof was made that if permitted to do so, Strutz would testify that the defendant, Charles Porcelli, who represented himself to be Ormiston's lawyer, called upon him at the Glencoe police station. Porcelli placed an envelope which he said contained $300 on a desk and said it would be the officer's if he would alter his report in two respects: change 'unsure in turning' to 'sure,' and 'completely missed' the finger-to-nose test to 'hesitant.' Strutz said he would have to talk it over with his Chief of Police and would telephone Porcelli.
Strutz telephoned Porcelli the next afternoon but he did so from the State's Attorney's Office. He consented to having Porcelli came to the station about 10:30 P.M. Strutz gave him copies of the original and amended report which he placed in his briefcase and received in return an envelope filled with bills. The exchange took place in a room that was used for the identification of suspects and it was equipped with a mirror. Porcelli asked if it was a one-way mirror. Strutz said it was and Porcelli walked out of the room.
the conversation recorded and the State's Attorney approved its transcription. Strutz testified that he told Porcelli he had talked to the chief and asked, 'what is there for us?' Porcelli replied, 'Three, like I told you last night.' The officer said he had the Alcohol Influence Report in front of him and asked 'what is it you wanted?' Porcelli answered, 'A sure on turning and a hesitant on finger to nose.' He inquired whether Strutz was working from 3 to 11 P.M. and said, 'Well, I will be out there tonight.'
A Glencoe police lieutenant and the assistant State's Attorney who had been present at the afternoon's telephone talk were standing in back of the mirror. They observed the transaction and overheard the conversation. The lieutenant arrested Porcelli as he entered his automobile and brought him back to the station. The lieutenant then returned to the auto and retrived the briefcase containing the reports.
The trial court sustained the motion to suppress for these reasons: the electronic surveillance was done without a warrant; it violated the Fourth Amendment to the Federal Constitution and section 6, Article I of the State Constitution; the statute under which it was done was invalid and the authorization sanctioning it was over-broad. Because we fully concur with the last reason we find it unnecessary to discuss the others. Constitutional issues should not be considered if a case can be decided on other grounds. Alexander v. Louisiana (1972), 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536; People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872.
The Statute provides:
'A person commits eavesdropping when he:
'(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State's Attorney; . . .' Ill.Rev.Stat., 1971, ch. 38, para. 14--2.
To establish its compliance with the statute, the following document, which was characterized as a 'memorial,' was introduced into evidence by the State:
'OFFICE OF THE STATE'S ATTORNEY
SEPTEMBER 28, 1972.
'LIEUTENANT LOUIS CANTONE
CHIEF INVESTIGATOR
STATE'S ATTORNEY'S OFFICE
CHICAGO, ILLINOIS ,60608
Dear Sir:
This is to request and authorize that investigators under your command designated by you or by supervisory personnel responsible to you, to use an eavesdropping device to hear or record all or any part of any conversation between one Russell Strutz and any other individual if such hearing or recording is done with the consent of Russell Strutz.
This request and authorization is made pursuant to Chapter 38, Section 14--2(a) of the Illinois Revised Statutes, 1971.
This request and authorization is in effect from 11:00 A.M., September 28, 1972 through and including October 5, 1972, 11:00 A.M.
Yours truly,
/s/ Edward V. Hanrahan
State's Attorney of Cook County.'
EVH:NJM:rmn
Certain things about the letter cast suspicion upon the time it was written and the authenticity of the signature. The State called the document a memorialization of a bookkeeping entry, which suggests that it was issued after the recorded conversation and that its purpose was to formalize an earlier oral authorization; lending weight to this inference is the statement that it was to be effective from 11:00 A.M., September 28, 1972, which was four hours before the recording took place and two hours before Strutz requested it. The initials NJM appended to the letter were those of an assistant State's Attorney who was the head of the Special Prosecutions Unit of the State's Attorney's Office; their presence on the letter carries an implication that he was the actual writer.
But apart from these possibly significant factors (see United States v. Giordano (1974), 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341; but Cf. People v. nahas (1973), 9 Ill.App.3d 570, 292 N.E.2d 466) the letter was too broad. It authorized anyone of a large number of people to use an eavesdropping device to hear or record, not conversations between Strutz and Porcelli, but any conversation Strutz might have with anyone during a period of one full week.
The Illinois statute flatly declares that the use of an eavesdropping device is a criminal offense. In this respect the statute comports...
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...and the State's proof. See Nardone v. United States , 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939) ; People v. Porcelli , 25 Ill. App. 3d 145, 323 N.E.2d 1 (1974). Independent, untainted sources of evidence include testimony from witnesses who acted voluntarily, free from coercion, ......
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