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People v. Knight

MAY 1, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JAMES S. KNIGHT, JR., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Moultrie County; the Hon. W.B. KRANZ, Judge, presiding.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

The State is appealing the order of the trial court suppressing the audio portion of an audio-visual tape made of the defendant at the Moultrie County jail after his arrest for driving while under the influence of alcohol on October 24, 1973.

The appeal is brought under Supreme Court Rule 604(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)).

The evidence at issue was suppressed by the trial court after a pretrial hearing on defendant's motion to suppress, which was brought under section 114-12 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-12), "Motion to Suppress Evidence Illegally Seized."

Since this is the kind of suppression of evidence which Supreme Court Rule 604(a) allows the State to appeal, we have jurisdiction.

The defendant has not answered or filed a brief. In this situation, we may reverse pro forma or consider the cause on its merits. (People v. Giannopoulos, 20 Ill. App.3d 338, 314 N.E.2d 237.) We choose to follow the latter course.

Defendant was arrested by Trooper Anthony Walker in the early morning on October 24, 1973. At the hearing on the motion to suppress, Trooper Walker testified that, immediately after the arrest, he recited the Miranda warnings from memory. He testified that defendant indicated he understood his rights. Trooper Walker's testimony was corroborated by Rieck Kendall, deputy sheriff of Moultrie County, who was also present at the arrest site. Defendant himself testified that he was informed, at some point prior to his arrival at the jail, that he had a right to remain silent, and that anything he said could be used against him. He also remembered that he was told that he had a right to an attorney, but testified that at the time he did not think he needed one.

After defendant was taken to the Moultrie County jail, he performed some physical tasks and conversed with and responded to the questions of officers present. During this time, defendant was being recorded both by video and audio equipment. Defendant testified at the hearing that he was not aware he was being recorded. The trial court, in its order, found, as a matter of fact, that defendant did not know he was being taped.

The trial court suppressed at the audio portion of the tape upon a finding that defendant's rights under the eavesdropping statute (Ill. Rev. Stat. 1973, ch. 38, par. 14-5), and his constitutional right against self-incrimination had been violated.

Section 14-5 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 14-5) provides that any evidence obtained in violation of the statute is inadmissible in a criminal trial.

Under the prior eavesdropping statute (Ill. Rev. Stat. 1961, pars. 14-1 et seq.) as interpreted by our supreme court, evidence obtained by eavesdropping devices could not be used unless the person against whom the evidence was being offered had consented to its recording. People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154.

However, in 1969, the statute was amended by PA 76-1110, § 1, effective August 28, 1969. The statute now reads:

"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 ...


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