APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
McDONNELL, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant Kenneth Smith was charged with "intent to defraud" the Illinois Bell Telephone Company (Ill. Rev. Stat. 1973, ch. 134, par. 15c(c)) after police searched defendant's apartment and recovered a "blue box" device. *fn1 On February 14, 1974, the court sustained defendant's motion to quash the warrant authorizing the search of defendant's apartment. On February 25, 1974, the State filed notice of appeal and the trial court's order quashing the warrant was reversed by the appellate court on August 13, 1975. *fn2 Defendant's petitions for leave to appeal to the Illinois Supreme Court and for a writ of certiorari to the United States Supreme Court were denied, and the cause was set for trial.
At trial held on October 22, 1976, defendant was found guilty of "intent to defraud" and was sentenced to two years probation and ordered to pay $1000 restitution. Defendant appeals.
The issues presented for review are (1) whether the prior appellate court decision of August 13, 1975, upholding the search warrant precludes further challenge to the warrant; (2) whether the search warrant failed to meet the constitutional requirements for the establishment of probable cause; (3) whether the search warrant was invalid because it allegedly failed to describe with sufficient particularity the items to be seized; (4) whether the warrant was predicated upon evidence allegedly obtained in violation of defendant's right to privacy granted by the Illinois Constitution; and (5) whether the State failed to prove defendant guilty beyond a reasonable doubt.
On May 8, 1973, John Connally, a security representative for Illinois Bell Telephone Company, executed a complaint for a search warrant for the person of Kenneth Smith and for the second floor apartment at 3531 West Melrose, Chicago, Illinois. Connally's affidavit alleged the following:
"The above named person is the subscriber to telephone #539-7242 at the above address. The use of this telephone number has been mechanically observed to determine its usage by the complainant for approximately two weeks prior to 6 May 1973. This mechanical observation has revealed that long distance telephone calls placed by the user and only listed occupant of the apartment in question. These long distance calls are being made without being charged to the user's (Smith's) bill by use of a device which mechanically reproduces tones which allow the user (Smith) to bypass normal telephone billing procedures. The affiant has expertise and personal knowledge of the device being used by said Kenneth Smith and based on this expertise and personal knowledge obtained through Telephone Companies mechanical observation and recordation of phone calls dialed on the said user's (Smith's) telephone swears under oath that the said Kenneth Smith is defrauding the Illinois Bell Telephone Company of the lawful charges."
On May 8, 1973, based on the above affidavit, a search warrant was issued for the person of Kenneth Smith and the apartment. The warrant authorized seizure of "any and all machines, contrivances, devices, equipment and documents which have been used in the commission of or which constitute evidence of the offense of obtaining service with intent to defraud in violation of I.R.S. Chapter 134, 15c, § 1(c)." Chicago Police Officer John Jennings executed the warrant on May 8, 1973, and seized a "blue box" from defendant's apartment. A complaint was then filed charging Kenneth Smith with defrauding Illinois Bell Telephone Company.
On February 13, 1974, defendant filed a motion to quash the search warrant and to suppress evidence, alleging that Connally's affidavit failed to demonstrate probable cause for issuance of the search warrant, and that the warrant lacked a sufficient description of the property that was to be seized. Defendant also alleged that Illinois Bell had obtained evidence in violation of the Federal wiretap law. 47 U.S.C. § 605 (1970).
On February 14, 1974, the trial court sustained defendant's motion to quash the warrant, finding that Illinois Bell had obtained evidence by monitoring defendant's telephone line in violation of Federal wiretap laws. The State appealed the trial court's finding and on August 13, 1975, the Illinois Appellate Court reversed, finding no violation of the Federal wiretap law. The court did not address the issues of probable cause or sufficiency of the description of the items to be seized, which issues were raised in the parties' appellate briefs. Defendant raised these again in his petition for rehearing, which was denied September 2, 1975; in a petition for leave to appeal, which was denied by the Illinois Supreme Court on October 16, 1975; and in a petition for writ of certiorari, which was denied by the United States Supreme Court. (Smith v. Illinois (1976), 425 U.S. 940, 48 L.Ed.2d 183, 96 S.Ct. 1678.) The cause was then remanded for trial.
On October 4, 1976, defendant filed a second motion to quash the warrant, alleging that: (1) the affidavit in support of the warrant lacked probable cause, (2) the warrant failed to describe with particularity the property to be seized, and (3) the warrant was predicated upon evidence seized in violation of the Illinois Constitution. The trial court denied defendant's motion, and the cause was set for trial.
At trial held on October 22, 1976, John Connally, a security representative for Illinois Bell, testified to the following: In reviewing the March 1973 billing for toll-free calls made by Illinois Bell subscribers, Connally observed that defendant's number (539-7242) indicated an unusual number of lengthy telephone calls directed to toll-free numbers. Connally installed a "dialed number recorder" (Hekimian device) on defendant's telephone line at the Illinois Bell office. The "dialed number recorder" prints the numbers dialed on a party's telephone and indicates whether a party is using a "blue box" device to bypass the telephone billing procedures. The "blue box" or "multi-frequency tone generator" is a device which permits the caller to make long distance calls to any number, while the phone company's equipment indicates that the caller is dialing a toll-free "800" number. A caller dialing an "800" number is not charged for a toll call; however, the calls are reflected as a credit on records maintained by Illinois Bell. Connally had detected and caused the arrest of over 100 persons for "blue box" usage, and he stated that the "Hekimian device" was designed exclusively to detect "blue box" usage.
The "Hekimian device" was removed from defendant's telephone line on April 24, 1973, but the device was reconnected on April 30, 1973, and it monitored defendant's telephone line through May 3, 1973. During the period the device was connected to defendant's line, the device indicated the "blue box" was used on more than eight occasions to complete toll calls that would not be billed to defendant.
On May 8, 1973, Connally signed a complaint for a search warrant which was issued by Judge Joseph Power. Later that same evening Connally installed the "Hekimian device" on defendant's telephone line. At 8:09 p.m. the device indicated that a "blue box" call was being made. Connally then so ...