APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the trial court suppressing various tape recordings and all evidence derived therefrom. The principal issue on appeal is whether the trial court erred in finding that the State had not complied with the relevant provisions of the eavesdropping act in recording certain conversations of defendant Hrant Kezerian (Ill. Rev. Stat. 1975, ch. 38, par. 14-1 et seq.).
On October 21, 1975, special agent Robert Magnusen of the Illinois Bureau of Investigation informed Robert Rice, State's Attorney of St. Clair County, of a plan to burglarize the Cahokia Downs Race Track. Magnusen told Rice that he had learned of the plan from Ronald Fuentes, a security guard at the race track, and requested Rice's authorization to record a conversation concerning the plan between Fuentes and defendant Kezerian. Rice orally approved this request and the recording was made on October 22, by means of a concealed eavesdropping device carried by Ronald Fuentes. On October 23 Agent Magnusen requested Rice's authorization to monitor and record a phone conversation between Fuentes and defendant Kezerian. The State's Attorney again orally consented and on October 23 a telephone conversation between Fuentes and Kezerian was recorded. On October 24, Agent Magnusen presented the State's Attorney with three separate written authorizations prepared by the Illinois Bureau of Investigation, two of which confirmed oral authorizations of the surveillance conducted on October 22 and 23 and the third authorizing another surveillance of a conversation between Fuentes and Kezerian to take place on October 25. State's Attorney Rice signed these authorizations and a conversation between Fuentes and Kezerian on October 25 was recorded by means of a device carried by Fuentes. A final surveillance of a conversation between Fuentes and Kezerian took place on October 26, 1975. Agent Magnusen received oral authorization for this surveillance which was confirmed by a memorandum dated October 29 and signed by State's Attorney Rice.
At the hearing on defendant's motion to suppress these recordings, Agent Magnusen testified that he personally conducted each surveillance, although Fuentes actually used the recording device on two occasions. Magnusen also stated that he had told the State's Attorney that Ronald Fuentes had consented to each recording and had kept him informed of the parties involved in the conversations. Neither the oral authorization nor the confirming memoranda, however, contained any restrictions on who was to be put under surveillance or who was to monitor the conversations, and Magnusen testified that the October 22 conversation was in fact transmitted over the radio and was heard by several agents and police officers. On direct examination Magnusen testified that the written memoranda were the authorizations under which he acted. On cross-examination, however, he stated that he conducted surveillance pursuant to the oral authorizations of State's Attorney Rice. Nevertheless, Magnusen did state that he knew of no limitations on the State's Attorney's authorizations except those stated in the written confirmations. Magnusen also testified that although Fuentes conducted the actual surveillance on October 22 and 25, Fuentes was not informed of any restrictions upon the individuals whose conversations were to be recorded.
Each of the written authorizations or confirmations was identical except for the date and time of surveillance. The following excerpts from the memoranda of October 24 confirming the State's Attorney's authorization of the October 22 surveillance represent the limitations imposed on each authorization:
"This letter is to confirm the oral request made by you to use electronic eavesdropping equipment in reference to the Cahokia Downs Race Track investigation. The request to use the eavesdropping equipment is granted with the following limitations:
That an agent or agents of the Illinois Bureau of Investigation use the electronic eavesdropping device to hear or record all or part of any conversation with the consent of any one party to the conversation.
That the said eavesdropping shall occur only between the hours of 12 noon and 1:30 p.m. on Wednesday, October 22, 1975, 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 any testimony which originated from the use of the eavesdropping equipment. 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 act. The court's primary objection to the surveillance, however, was that the authorizations were too broad in that they failed to identify the persons who were to monitor and record the conversations or the persons who were to be placed under surveillance. At the time the surveillance in this case took place, section 14-2 of the eavesdropping act of 1968 was in effect and 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; * * *." (Ill. Rev. Stat. 1975, ch. 38, par. 14-2(a).)
Section 14-5 of the act provided in pertinent part that
"Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *." Ill. Rev. ...