People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35)

Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid.

Gist

Defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance with the intent to deliver.

It was investigation involving the Four Corner Hustlers.

Wiretap Evidence

As part of an investigation into gang activity, the Lake County State’s Attorney’s Office obtained authorization to intercept private communications involving certain telephone numbers.

Issue

The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/108B), based on applications signed and presented by two assistant state’s attorneys (ASAs), not by the elected state’s attorney (SA).

Defendants joined in a motion to suppress the evidence, arguing that the SA’s failure to personally apply for the wiretap orders violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better known as “Title III.”

They argued that, pursuant to Illinois and federal law, an application for a wiretap order must be personally authorized, in writing, by the elected SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was so authorized and that, therefore, the orders entered pursuant to the applications were invalid.

Turns Out

The chief of the gang and narcotics prosecution division of the Lake County State’s Attorney’s Office the chief of the felony trial division were signing these warrants. Consistent with the applications, each order noted that the application was made, under oath, by either ASA Mathews or, in one instance, ASA Fisz, “on behalf of Michael G. Nerheim, State’s Attorney of Lake County.

The applications included orders and extension orders for nonconsensual telephone interceptions of the gang.

The investigation was being conducted by the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group; and the police departments of Waukegan, North Chicago, and Zion.

Turns out SA Nerheim did not personally sign or present the wiretap applications.

The Illinois Overhear Statute

Section 108B-2(a) governs “request[s] for application for interception.” 725 ILCS 5/108B-2(a). This is an authorized eavesdropping recording.

The statute provides that “[a] State’s Attorney may apply for an order authorizing interception of private communications in accordance with the provisions of this Article.”  725 ILCS 5/108B-2(a).

In turn, section 108B-3(b) provides that

“[t]he State’s Attorney or a person designated in writing or by law to act for the State’s Attorney and to perform his or her duties during his or her absence or disability, may authorize, in writing, an ex parte application to the chief judge of a circuit court for an order authorizing the interception of a private communication when no party has consented to the interception and the interception may provide evidence of, or may assist in the apprehension of a person who has committed, is committing or is about to commit,