APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLAS, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 18, 1966.
This litigation is an outgrowth of the much publicized tape recordings procured by unknown persons secretly "bugging" a hotel room with electronic eavesdropping devices and tapping a telephone in the room.
Six persons were served with subpoenas to appear before a Sangamon County grand jury. They filed a petition to suppress certain tape recordings "and all transcripts, reproductions, or excerpts derived therefrom" for use as evidence before any grand jury or in any civil or criminal trial or in any administrative or legislative proceeding or inquiry; to restrain the State's Attorney of Sangamon County from publishing or exhibiting the tapes or excerpts; to compel the State's Attorney to deliver to the circuit clerk the tapes and excerpts for impoundment; and to quash subpoenas duces tecum directing them to appear before the grand jury and produce certain documents.
On July 14, 1965, the trial court entered an order quashing the subpoenas, suppressing the tapes and any transcripts or excerpts for use as evidence before the grand jury "or in any administrative or legislative inquiry or proceedings, or for any other use," enjoining the State's Attorney from using the impounded materials or any information obtained from them and impounding the tape recordings. A verbal motion of the State's Attorney to stay the injunction and impoundment of the tapes was denied. He then presented and asked leave to file a written motion to dismiss and an answer to the petition. Leave was denied. On July 16, the clerk reported compliance with the order by the State's Attorney and the impoundment of the materials. Notice of appeal from the order of July 14 was filed July 27 and the cause was docketed in this court as No. 39526.
The second phase of the litigation involves a six-member commission of the House of Representatives of the Illinois General Assembly who are made additional respondents. Members of the commission were appointed pursuant to House Bill 2269, which created the commission for the purpose of investigating the information contained in and arising out of the tape recordings insofar as they might reflect upon or involve civil officers of the State.
On August 5, 1965, six copies of the order of July 14 were delivered to John E. Cassidy, Jr., chairman of the commission, for distribution to the members. The commission nevertheless caused a subpoena duces tecum to be served upon the circuit clerk requiring him to produce the impounded tape recordings and documents. Whereupon the original petitioners filed a petition to quash the subpoena duces tecum, and the commission moved to dismiss the petition and expunge the order of July 14 insofar as it restrained the powers of the commission. On August 30 the trial court entered an order denying the motion to dismiss, quashed the commission's subpoena, again suppressed the tape recordings and excerpts and enjoined specifically the additional respondents from using or attempting to use them.
The order contained a finding that there is no just reason to delay enforcement of or appeal from the order.
We denied a motion for leave to file an original petition for writ of mandamus to expunge the orders of July 14 and August 30. The commission then filed notice of appeal to this court from the August 30 order and the appeal was docketed as No. 39710.
While the first appeal arose out of a grand jury proceeding and the second out of legislative action, the two are so entwined and the overtones so intermingled that they should be viewed together. For example, aside from the fact that the same petitioners and same tapes are involved in both actions, the order of July 14, 1965, is broad and encompasses a prohibition of use of the tapes not only before the grand jury but also in any "legislative inquiry or proceedings." Consequently, although the causes were argued separately, they have been consolidated for opinion.
We observe parenthetically that after the second appeal the commission conducted a hearing and the court entered a rule to show cause why the additional respondents should not be held in contempt. An order finding the chairman and one member of the commission in contempt was entered, and the question of punishment continued generally pending this appeal. That order is not an issue here.
Three of the petitioners (Maslowsky, Gottlieb and Kaplan) leased the hotel room in April, May and June, 1965, during the 1965 session of the 74th General Assembly. The tapes allegedly are recordings of their conversations in the hotel room over a period of time. They and the other petitioners are members and officials of the Chicago Currency Exchange Association, Inc. Through anonymous letters, Jack Mabley, a columnist for the Chicago's American, a Chicago metropolitan newspaper, was given typed excerpts of tape recordings and "tipped off" to look into certain lockers in a Chicago Greyhound bus depot by means of keys enclosed with the excerpts. He found the 15 tape recordings here involved and gave them and the excerpts to the State's Attorney of Sangamon County. The petition alleges that both Mabley and the State's Attorney played the tapes to persons who were familiar with the voices of the three petitioners and most of the voices on the tapes were identified as those of the three petitioners.
It is the theory of petitioners that the recordings were obtained surreptitiously by means of electronic devices and the placing of a "tap" on their hotel telephone without their knowledge or consent in violation of the eavesdropping article of the Criminal Code of 1961, (Ill. Rev. Stat. 1965, chap. 38, pars. 14-1 to 14-7,) and in violation of their rights under the fourth, fifth, ninth, and fourteenth amendments of the Federal constitution and sections 2, 6, and 10 of article II of the Illinois constitution.
The People's theory is that petitioners lack standing to maintain this action and that "the fruit of the poisoned tree" doctrine is not applicable on either statutory or constitutional grounds unless some showing is made that some governmental agent participated in the obtaining of the recordings.
On the question of standing it is argued that petitioners failed to bring themselves within the category of persons who may claim a violation of their constitutional rights, and the People cite the following cases which they say support their argument: Goldstein v. United States, 316 U.S. 114, 86 L.Ed. 1312, which held that persons who were not parties to any conversations intercepted by means of illegal wiretapping could not complain, and Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697. Their quotation from the Jones case was misleading. The dilemma of a person seeking suppression of evidence, particularly where possession of the seized property in itself establishes proof sufficient to convict was recognized, and it was pointed out that ...