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People v. Marlow

OPINION FILED JUNE 3, 1976.

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

v.

CHARLES W. MARLOW, DEFENDANT-APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

PHILLIP HILL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. MURPHY, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

This is an appeal by the State from an order quashing the defendants' arrest and suppressing evidence found in their possession.

On the morning of April 9, 1974, the Chicago Police Department made a written request to the State's Attorney of Cook County for permission to electronically monitor and record a conversation which was expected to take place between 1 and 6 p.m. that day between an informant named Tyrone Williams and the defendant, Phillip Hill. The State's attorney was not available and the request was forwarded to his first assistant, who had been authorized by the State's attorney to act in his stead in such matters in the event he was not available. The first assistant consented to the surveillance and a notation to that effect was made on the police department's request.

Subsequently, Williams, wired with a transmitting device, conversed with Hill and his companion, the defendant Charles Marlow. The radioed conversation was overheard by police officers and three hours later, based upon what they had heard, they arrested and searched the defendants and charged them with illegal possession of marijuana and with conspiracy to deliver heroin.

Before the trial, the defendants filed a motion to quash their arrests and to suppress the physical evidence taken from either their persons or from the automobile in which they were sitting when arrested, and to suppress the testimony of the police officers and the tapes and transcripts obtained by them by way of electronic surveillance. The motion was granted.

In granting the motion the trial court held the following statute, under which the surveillance was conducted, unconstitutional:

"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 Attorney; * * *." (Ill. Rev. Stat. 1973, ch. 38, par. 14-2(a).)

It was the court's opinion that the statute was unconstitutional because of the unrestricted power it granted the State's attorney to exempt persons from the criminal offense of eavesdropping and that this constituted an unlawful delegation of legislative authority. The court also found that the statute was in violation of the fourth amendment to the Constitution of the United States and of section 6, article I, of the Constitution of the State of Illinois which provides that people have the right to be secure in their persons and possessions against unreasonable interceptions of communications by eavesdropping devices or other means.

Dispositive of nearly all the points the defendants have raised in support of the trial court's ruling is the case of People v. Richardson (1975), 60 Ill.2d 189, 328 N.E.2d 260. In Richardson, tape recordings of two telephone conversations were made between an informant and the defendant, and a third conversation between them was transmitted to listening officers by means of an electronic device carried by the informant. The eavesdropping had been approved by the State's attorney in a telephone conversation with his first assistant who, in turn, authorized the surveillance. The trial court in Richardson, as in this case, declared section 14-2 unconstitutional and the State appealed.

The Richardson court considered the three constitutional questions advanced by the defendants in the present case: the invalidity of section 14-2, the violation of the fourth amendment to the United States Constitution and the violation of article I, section 6 of the Illinois Constitution. In each instance the reviewing court held against the defendant. The judgment of the trial court was reversed and the cause was remanded.

• 1 The only constitutional question pertaining to the use of section 14-2 never addressed in Richardson but raised here is whether the statute denies equal protection under articles I and II of the Illinois Constitution. The proposition that it does has been advanced without citation to case law or legislative history. We think that it has no validity.

The defendants made two final points. First, they argue that the statutory requirements of section 14-2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 14-2) were never met. They note that section 14-2(a) permits the use of an eavesdropping device when it is done with the consent of any party to the conversation and "at the request of a State's Attorney." They point out that it was the first assistant State's attorney, rather than the State's attorney himself, who made the "request" for the electronic surveillance. We do not regard this as a deviation from the legislative intent. It has been held that the legislature intended that a request under section 14-2(a) could be made by an assistant State's attorney if the State's attorney is absent, sick or otherwise unavailable. People v. Holliman (1974), 22 Ill. App.3d 95, 316 N.E.2d 812; People v. Nahas (1973), 9 Ill. App.3d 570, 292 N.E.2d 466.

We do not subscribe to a construction of the statute that would permit any assistant to act in place of the State's attorney. In large counties where there are many assistants, allowing all of them to act in lieu of the State's attorney would result in a diffusion of responsibility that would weaken the control of State-sponsored eavesdropping far beyond the contemplation of the legislature. In People v. Porcelli (1974), 25 Ill. App.3d 145, 323 N.E.2d 1, this court stated that the statutory restraints on electronic eavesdropping and the mandate of our State Constitution "demand the strict construction of the statute and coordinately, the equally strict scrutiny of all purported consents ...


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