People v. Sylvester

• Decision Date: 30 June 1980
• Docket Number: No. 78-477,78-477
• Parties: , 41 Ill.Dec. 504 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Phillip SYLVESTER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1002

407 N.E.2d 1002

86 Ill.App.3d 186, 41 Ill.Dec. 504

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Phillip SYLVESTER, Defendant-Appellee.

No. 78-477.

Appellate Court of Illinois, First District, Third Division.

June 30, 1980.

Bernard Carey, State's Atty., Lee T. Hettinger, Iris E. Sholder, Wendy S. Paul, Asst. State's Attys., Chicago, for plaintiff-appellant.

Serpico, Novelle, Dvorak & Navigato, Ltd., Robert A. Novelle, Anthony J. Onesto, Chicago, for defendant-appellee.

McGILLICUDDY, Presiding Justice:

The defendant, Phillip Sylvester, was indicted for the offenses of intimidation, official misconduct, bribery and theft. At trial the court granted defendant's motion to suppress the contents of a recorded conversation between the defendant and another individual. The State appeals pursuant to Ill.Rev.Stat.1977, ch. 38, par. 108A-10. The sole issue presented for review is whether the trial court erroneously granted the defendant's motion to suppress the tape recorded conversation and all other evidence derived therefrom.

On August 5, 1977, Illinois Department of Law Enforcement Agent Timothy J. O'Brien filed a written application, under oath, for an order approving the use of an eavesdropping device to record any and all conversations from August 6, 1977, at 2 p. m., until August 8, 1977, at 11:59 p. m., between the defendant and Harry Lehr, a consenting third party. The defendant was identified in the application as "Phil LNU (last name unknown) (M/W, 5'9 , 265 lbs., dark complexion, black short cropped hair)." Briefly, the application stated that Lehr, a resident of Elmwood Park, had reported a burglary and auto theft on August 1, 1977. It alleged that when Lehr's auto was recovered in Chicago the defendant, who was a member of the Elmwood Park Police Department, told Lehr that "he felt Lehr had filed a false police report and that he would see him hang for it." The next day, Lehr received a call to go to the Elmwood Park police station. At the station the defendant was told to type out Lehr's burglary and theft complaints. The application alleged that the defendant threatened "to expose Lehr's lifestyle and nail him to the cross" and verbally abused Lehr for two and one-half hours. When no complaints were typed, Lehr asked the defendant what he wanted and the defendant made an offer to have the "whole incident buried" upon the payment of $400. The defendant called Lehr on August 4 and stated he had worked everything out. Arrangements were made to meet at a specified location on August 6, 1977, at 3 p. m.

The application was signed by O'Brien on August 5, 1977, at 2:40 p. m. It was submitted to a Circuit Court judge the same day and approval was obtained at 2:45 p. m. Also submitted with the application were signed documents captioned "State's Attorney Authorization for Application for Approval of Use of Eavesdropping Device" and "Consenting Party." The former document indicated that the use of an eavesdropping device had been approved by the State's Attorney on August 5, 1977, at 1:30 p. m. This form was signed by Frank DeBoni, Assistant State's Attorney, on behalf of Deputy State's Attorney Thomas M. Burnham. The "Consenting Party" document was signed by Harry Lehr on August 5, 1977, at 1 p. m. and indicated that Lehr had consented to having his conversations with the defendant recorded on the same dates and times and by the same persons specified in O'Brien's application.

The Circuit Court order approving the eavesdropping application was issued to "the agents of Chief Sylvester as stated in the memo dated 8-16-76 and A.S.A. (Assistant State's Attorney) Prendergast, A.S.A. DeBoni, and A.S.A. Chiganos" and allowed the use of an eavesdropping device to record conversations between the defendant and Lehr at the times requested. On August 8, 1977, the judge found that the tape was properly recorded and entered a retention order. A notice dated October 4, 1977, signed by the judge, informed the defendant that his conversations from August 6 to August 8 were recorded pursuant to court order.

The defendant filed a motion to suppress the recorded conversations. The trial court granted this motion and found the application for use of an eavesdropping device was insufficient for two reasons: (1) the request for issuance of the eavesdropping order to "the agents of Chief Joseph Sylvester as stated in the memo of 8-16-76 and A.S.A. Prendergast, A.S.A. DeBoni, and A.S.A. Chiganos" was an inadequate identification of the law enforcement officers involved, and (2) the State's Attorney's authorization of the application should have been notarized or incorporated by reference into the notarized application. For the reasons stated below, we find the defendant's motion to suppress his tape recorded conversation with Lehr was erroneously granted.

I

The instant case involves a situation where one party to the recorded conversation consented to the use of an eavesdropping device. One-party consent eavesdropping does not violate the Fourth Amendment of the United States Constitution (U.S.Const. Amend. IV). (U. S. v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453; People v. Richardson (1975), 60 Ill.2d 189, 328 N.E.2d 260, cert. denied (1975) 423 U.S. 805, 96 S.Ct. 13, 46 L.Ed.2d 25; People v. Swimley (1978) 57 Ill.App.3d 116, 14 Ill.Dec. 608, 372 N.E.2d 887, cert. denied (1978), 439 U.S. 911, 58 L.Ed.2d 257, 99 S.Ct. 281.) Therefore, any restrictions placed on recording the conversations are statutory and not constitutional. People v. Childs (1979), 67 Ill.App.3d 473, 24 Ill.Dec. 380, 385 N.E.2d 147; Swimley.

In order to obtain judicial approval for the use of eavesdropping devices, when one party to the expected conversation has consented, an application must be made in writing, upon oath or affirmation, and must include the following information:

"(1) the identity of the investigative or law enforcement officer making the application and the State's Attorney authorizing the application (2) a statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued including: (a) details as to the felony that has been, is being or is about to be committed; (b) a description of the type of communication sought to be monitored; (c) the identity of the party to the expected conversation consenting to the use of an eavesdropping device; (d) the identity of the person, if known, whose conversations are to be overheard by the eavesdropping device;

(3) a statement of the period of time for which the use of the device is to be maintained or, if the nature of the investigation is such that the authorization for use of the device should not terminate automatically when the described type of communication is overheard or recorded, a description of facts establishing reasonable cause to believe that additional conversations of the same type will occur thereafter; . . . "

(Ill.Rev.Stat.1977, ch. 38, par. 108A-3(a).) The statute further provides that the State's Attorney may authorize an application to the Circuit Court judge and the judge may grant an order authorizing the use of an eavesdropping device by a law enforcement officer or agency having the responsibility for the investigation of a felony. Ill.Rev.Stat.1977, ch. 38, par. 108A-1.

At the hearing on the defendant's motion to suppress the tape recording, the trial court ruled the description of authorized agents in the application was insufficient because it did not identify, by name, the law enforcement agents or agency authorized to use an eavesdropping device. The apparent reason for this finding of insufficiency was the judge's feeling that, in the event a violation occurred, the aggrieved citizen should be able to determine readily the names of the individuals involved.

The statute empowers the Circuit Court judge to authorize 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." (Ill.Rev.Stat.1977, ch. 38, par. 108A-1.) There is no requirement that the application or order must identify the individuals or agency so authorized, (see Ill.Rev.Stat.1977, ch. 38, pars. 108A-3(a), 108A-5(a)) and we will not impose such a requirement when the legislature has not done so. People v. Kezerian (1979) 77 Ill.2d 121, 32 Ill.Dec. 321, 395 N.E.2d 551.

The second basis for the trial court's suppression of the recorded conversation was that the State's Attorney's authorization form was not notarized or incorporated by reference into the notarized application. While there is no requirement that the State's Attorney's authorization of the application for use of an eavesdropping device be in writing (People v. Lewis 84 Ill.App.3d 556, 40 Ill.Dec. 310, 406 N.E.2d 11) section 108A-3 of the statute requires that the application, which must be submitted in writing and under oath to the Circuit Court judge, include the identity of the State's Attorney authorizing it. (Ill.Rev.Stat.1977, ch. 38, par. 108A-3(a)(1).) The application in the instant case did not contain this information nor did it incorporate by reference the separate document entitled "State's Attorney's Authorization for Application for Approval of Use of Eavesdropping Device," which itself was not notarized. Therefore, we agree with the trial court's finding that the statute governing the use of eavesdropping devices was violated. However, we do not agree that the recording and evidence derived therefrom should have been suppressed.

In reaching this conclusion, we rely on the rationale of Federal decisions interpreting Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. sec. 2510, et seq. (1976) (Title III).) This statute, although not identical to Article 108A of the Illinois Code of Criminal Procedure of 1963, is similar. Both statutes were enacted to protect the right of privacy and to provide...