APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the trial court suppressing two tape recordings and the testimony of any person concerning either of the conversations contained therein. The principal issue on appeal is whether the trial court erred in finding that the State had not complied with the relevant portions of article 14 of the Criminal Code of 1961 (eavesdropping statute) in recording certain conversations involving defendant Cedell Mosley (Ill. Rev. Stat. 1975, ch. 38, par. 14-1 et seq.).
In March and April of 1976, the Belleville office of the Illinois Bureau of Investigation was engaged in the investigation of alleged payoffs from tavern owners to East St. Louis city officials. As a result of conversations on March 29 and April 12, 1976, between IBI agent George Murray and defendant Mosley, Director of Public Safety of the city of East St. Louis, the defendant was charged with bribery, intimidation, official misconduct and conspiracy to permit gambling. Tape recordings of these conversations were made with the consent of the agent. These tapes are the subject of the instant suppression order.
A hearing on the defendant's motion to suppress was conducted on February 25, 1977. The only witness examined during the hearing was Ronald Grimming, Special Agent Squad Leader of the IBI office mentioned above. Prior to that examination, counsel stipulated that in both instances the request for authorization to record was made orally by agent Grimming, and that the written authorizations for such were prepared by the IBI and signed by State's Attorney Robert Rice prior to the time of each recording.
Two exhibits were admitted at the hearing. Defendant's Exhibit 1 consisted of three pages of IBI interagency memoranda relating to the March 29 recording and a one-page written authorization for that taping addressed to agent Grimming and signed by the State's Attorney. The authorization was dated March 25, 1976. Exhibit 2 was substantially the same as exhibit 1, referring, however, to the April 12 recording.
It was established that the State's Attorney did not see the interagency memoranda or any writing other than the letters of authorization which he signed prior to the recording of either of the two conversations. However, as noted above, he did have oral conversations with agent Grimming before he signed the authorizations. According to Grimming, the IBI's investigation had focused specifically on defendant prior to March 25. In the oral conversations seeking eavesdropping authority for both conversations, agent Grimming told the State's Attorney that he was seeking authority to record defendant Mosley. In fact, he only sought authorization as to the defendant for the March 29 date. The State's Attorney gave separate oral consent for the taping of both conversations with Mosley in addition to signing the written authorization forms.
Each of the written authorizations was identical except for the date and time of surveillance. The following excerpt from the authorization of March 25 is sufficient to reveal the substance of both authorizations:
"This letter is to confirm the oral request made by St. Clair County State's Attorney Robert H. Rice on March 25, 1976 for an Agent or Agents of the Illinois Bureau of Investigation to use an electronic eavesdropping device to hear or record all or any part of any conversation with the consent of any one party to such conversation with the following limitations:
That said eavesdropping shall occur only between the hours of 6:00 a.m. on March 29, 1976 and 6:00 p.m. on March 29, 1976, unless further notification is received from this office; and that the eavesdropping shall occur within the boundaries of St. Clair County in Illinois.
Any information or evidence obtained through the use of said eavesdropping device, with the above limitations, shall be used or divulged only in a criminal proceeding."
The trial court granted defendant's motion to suppress the tape recordings and further ordered the suppression of "the testimony of any person concerning either such conversation." The court determined that the requests for surveillance were made by agents of the Illinois Bureau of Investigation and not the State's Attorney as required by the eavesdropping statute. The court's primary objection to the surveillance, however, was that the authorization was too broad in that it failed to identify the persons who were to be placed under surveillance. The court also emphasized the lack of any written evidence that Grimming had sought to use electronic surveillance on the defendant.
At the time the surveillance in this case took place, section 14-2 of the eavesdropping statute provided in pertinent part that:
"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 * ...