People v. Brindley, 2017 IL App (5th) 160189 (August). Episode 409 (Duration 10:51)

The State's Attorney may authorize an overhear in drug investigations.

Charges

Defendant was charged with one count of unlawful delivery of a controlled substance within 1000 feet of real property used primarily for religious worship (720 ILCS 570/407(b)(2)) and one count of criminal drug conspiracy (720 ILCS 570/405.1).

Facts

In October 2014, Officer Rick Morris was an investigator with the Illinois State Police and was assigned to the Southern Illinois Drug Task Force in Hardin County, Illinois.

He was working with a confidential informant in an ongoing narcotics investigation.

On October 22, 2014, Morris learned from the confidential informant that the informant could purchase prescription medication from the defendant’s wife, Rebecca Brindley.

Morris arranged for the confidential informant to make a controlled drug purchase from Brindley.

Controlled Buy

Morris first searched the informant for any contraband and then supplied the informant with money to make the purchase.

Morris maintained surveillance of the informant as the informant walked to the Brindley residence, went inside, and returned to Morris with clonazepam tablets. The informant told Morris that Brindley was not home and that the defendant sold the tablets.

This was the second controlled narcotics purchase with the same informant.

Third Is Recorded

On October 28, 2014, the confidential informant told Morris that he could again purchase more prescription medications from the Brindleys the next day.

After receiving the authorization from the State’s Attorney, this time utilizing a hidden video and audio recording device to record the defendant during the transaction.

Morris did not obtain judicial approval to make the recording.

Motion To Suppress Defendant Says

The defendant filed a motion to suppress the recording pursuant to section 108A- 9(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-9(a)), which provides for the suppression of judicially authorized recorded conversations when

(1) the conversation was unlawfully overheard and recorded,
(2) the order of authorization or approval under which the device was used or a recording was made was improperly granted, or
(3) the recording or interception was not made in conformity with the order of authorization.

The defendant alleged that the conversations during the alleged drug transaction were unlawfully overheard and recorded because the State did not obtain judicial authorization for the recording pursuant section 108A-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-3), which sets out a procedure for obtaining judicial approval of law enforcement use of an eavesdropping device.

Prosecution Says

The State acknowledged that it did not obtain judicial approval for the overhear, but argued that section 14-3(q)(1) of the Criminal Code (720 ILCS 5/14-3(q)(1)) granted State’s Attorneys the power to authorize overhears during police investigations of drug offenses. It maintained that all of the requirements of section 14- 3(q)(1) had been met; therefore, the recording was admissible.

The circuit court agreed with the defendant and granted his motion to suppress the recording.

State Appeals

The issue before us is a legal one:

whether a recorded overhear that was approved by a State’s Attorney pursuant to section 14-3(q)(1) of the Criminal Code (720 ILCS 5/14-3(q)(1)) is admissible in the prosecution of a drug offense.

Eavesdropping Statute

Article 14 of the Criminal Code defines the criminal offense of eavesdropping as well as its exemptions. 720 ILCS 5/14-1 et seq. Under section 14-2(a) of the Criminal Code, a person commits eavesdropping when he uses an eavesdropping device, in a surreptitious manner, for purpose of overhearing or recording a private conversation unless he does so with the consent of all of the parties to the private conversation. 720 ILCS 5/14-2(a).

Section 14-3 of the Criminal Code defines “activities [that] shall be exempt from the provisions of [Article 14 of the Criminal Code].” 720 ILCS 5/14-3.

At the time of the recording in the present case, section 14-3(q)(1) provided the following exemption to eavesdropping:

“With prior request to and verbal approval of the State’s Attorney of the county in which the conversation is anticipated to occur, recording or listening with the aid of an eavesdropping device to a conversation in which a law enforcement officer, or any person acting at the direction of a law enforcement officer, is a party to the conversation and has consented to the conversation being intercepted or recorded in the course of an investigation of a drug offense.”

720 ILCS 5/14-3(q)(1).

Section 14-3(q)(1) authorized the State’s Attorney to grant approval for the overhear “only after determining that reasonable cause exists to believe that a drug offense will be committed by a specified individual or individuals within a designated period of time.”

Today, 720 ILCS 5/14-3(q)(7) has broadened this provision to includes investigation for many more felonies.

In section 14-3(q)(4) the legislature clearly and unambiguously stated that overhears obtained in compliance with section 14-3(q) are admissible in prosecutions for drug offenses.

Specifically, at the time of the recording at issue here, section 14-3(q)(4) stated in relevant part:

“Admissibility of evidence.

No part of the contents of any wire, electronic, or oral communication that has been recorded or intercepted as a result of this exception may be received in evidence in any trial, hearing, or other proceeding in or before any court *** other than in a prosecution of: 13 (A) a drug offense[.]”  720 ILCS 5/14-3(q)(4).

The statute defined a “drug offense” to include “a felony violation of *** the Illinois Controlled Substances Act,” which includes the charges the State brought against the defendant in the present case. 720 ILCS 5/14-3(q)(7).

Sunset Clause

Section 14-3(q) also contained a sunset clause which stated that section 14-3(q) was “inoperative on and after January 1, 2015,” but that “[n]o conversations intercepted pursuant to *** subsection (q), while operative, shall be inadmissible in a court of law by virtue of the inoperability” of the subsection on January 1, 2015. 720 ILCS 5/14-3(q)(8).

What About 108A Of The Code Of Criminal Procedure?

Article 108A of the Code of Criminal Procedure concerns judicial supervision of the use of eavesdropping devices. 725 ILCS 5/108A-1 to 108A-11.

Section 108A-1 states that a State’s Attorney may apply to a circuit court judge for authority to use an eavesdropping device by a law enforcement officer where any one party to a conversation to be monitored has consented to such monitoring. 725 ILCS 5/108A-1. 

Article 108A includes, among other things, the procedures for obtaining judicial approval to use an eavesdropping device, grounds upon which a judge may grant approval, the contents of any order granting the approval, requirements for retaining any recordings, and notice to the parties overheard. Under the clear and unambiguous language of the two statutes, however, they are each separate and alternative methods for law enforcement to use eavesdropping devices under different circumstances.

Each statute contains its own requirements, procedures, and limitations, including specific language discussing the admission of recordings obtained under each respective statutory provision.

Analysis

On appeal, the defendant does not argue that the State failed to comply with any of the requirements of section 14-3(q).

In the present case, Officer Morris obtained approval for the overhear recording under section 14-3(q) of the Criminal Code, not article 108A of the Code of Criminal Procedure. The statutory language of section 14-3(q) of the Criminal Code controls the admissibility of the recording, not article 108A of the Code of Criminal Procedure. 

Therefore, under the clear and unambiguous terms of section 14-3(q)(4) as it was written by the legislature at the time of the recording at issue, the recording is admissible in the State’s prosecution of the defendant for the charged drug offenses. This is the clear intent of the legislature in enacting the then-existing language of section 14-3(q).

 The legislature intended for section 14-3(q) to be a procedure for law enforcement officers to obtain recorded evidence admissible in felony “drug offense” prosecutions upon the authorization of State’s Attorneys.

The Differences

Section 14-3(q) allowed the State’s Attorney to authorize the use of an eavesdropping device for an overhear for only a limited period of time, 24 hours, and only for a limited type of a criminal investigation, felony drug offense (now includes more offenses).

This language did not contradict the language of article 108A, which authorizes the use of eavesdropping devices

• For any felony under Illinois law) 
• For longer time periods (up to 30 days) and
• Requires both prosecutorial and judicial approval.

725 ILCS 5/108A-1 ; 725 ILCS 5/108A-5(b).

Each statute serves a different purpose, applies under different circumstances, and has different procedures and limitations.

The legislature intended to give law enforcement officers a streamlined method for obtaining overhear authorization in limited circumstances during the investigation of certain offenses.

Holding

In the present case the clear and unambiguous language of section 14-3(q)(1) of the Criminal Code, provided that recordings obtained in compliance with the subsection are admissible in the prosecution of drug offenses. Therefore, in the present case, the circuit court improperly suppressed the recording, and we must reverse and remand for further proceedings.

Reversed and remanded.