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People v. Kezerian





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

The State appeals from a judgment of the appellate court (63 Ill. App.3d 610) affirming the trial court's suppression of certain tape recordings and testimony concerning the conversations recorded thereon. The issue is whether this evidence was inadmissible, as the trial and appellate courts> held, because of an alleged failure by the State to comply with the exceptions to the relevant statutory provisions prohibiting eavesdropping. Those provisions are as follows:

"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;

(b) Uses or divulges, except in a criminal proceeding, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device." Ill. Rev. Stat. 1975, ch. 38, par. 14-2.

"Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *." Ill. Rev. Stat. 1975, ch. 38, par. 14-5.

On October 21, 1975, St. Clair County State's Attorney Robert Rice was contacted by special agent Robert Magnusen of the Illinois Bureau of Investigation (IBI) concerning a plan to burglarize Cahokia Downs Race Track. Magnusen had learned of the plot from Ronald Fuentes, a security guard at the track, who agreed to cooperate with authorities involved in the investigation. Agent Magnusen requested from State's Attorney Rice authorization to record electronically a conversation between Fuentes and defendant, Hrant Kezerian, which was to take place on the following day. The State's Attorney gave an oral authorization, and the electronic surveillance was conducted successfully on the 22nd.

On October 23 Agent Magnusen again contacted the State's Attorney to obtain approval to record a conversation between Fuentes and defendant which was expected to take place later in the day. An oral authorization was given and the conversation recorded. On October 24, Agent Magnusen gave State's Attorney Rice three separate written forms of authorization which had been prepared and typed by the IBI. Two of the documents confirmed the prior oral authorizations given by the State's Attorney on October 21 and 23, while the third authorized a subsequent recording of a conversation expected to occur on the 25th. The State's Attorney signed all three of these authorizations, and the October 25 conversation between Fuentes and Kezerian was monitored and recorded. Finally, on October 26, a further conversation between Fuentes and Kezerian was recorded pursuant to oral authorization given by the State's Attorney on the 25th, written confirmation of which was prepared by the IBI and signed by State's Attorney Rice on October 29.

The written authorizations, which were virtually identical except for the specified date and time limitations, provided that electronic eavesdropping could be used by the IBI in its Cahokia Downs investigation subject to the following limitations: (1) that agents of the IBI use the electronic eavesdropping device to hear or record all or any part of any conversation provided they have obtained the consent of any one party to the conversation; (2) that the eavesdropping occur only within the designated hours on the specified date unless further notice is received from the State's Attorney's office; (3) that the eavesdropping take place only within the confines of St. Clair County; and (4) that any information or evidence obtained through the use of the eavesdropping device be used or divulged only in criminal proceedings.

At the hearing on the motion to suppress, Agent Magnusen testified that prior to obtaining each oral authorization from the State's Attorney, he informed Rice of the specific details of each planned electronic surveillance. The agent testified that he told the State's Attorney of the time, place and nature of the anticipated recording, as well as the parties to be involved. Agent Magnusen also testified that the individual wired for sound, Fuentes, was not informed of any limitations or restrictions as to individuals to be recorded.

Based on this testimony the trial court suppressed the recordings and held that the informant, Ronald Fuentes, would be barred from testifying concerning his recorded conversations with defendant because (1) the request for authority to eavesdrop was made by the IBI and not by the State's Attorney, and (2) each authorization granted by the State's Attorney was too broad since it failed to identify the person using the eavesdropping equipment and the person or persons whose conversations were to be recorded. That order was affirmed by a divided appellate court. The majority concluded that the authorizations involved herein were too broad because they did not identify specifically the person conducting the surveillance and the person or persons to be recorded. It felt that at a minimum "the revision of section 14-2 applicable here required that any eavesdropping be strictly limited to those persons and times specified by the State's Attorney." (63 Ill. App.3d 610, 617.) It also agreed that Fuentes' direct testimony concerning his conversations with defendant should be suppressed under the "fruit of the poisonous tree" principle. It further held, contrary to the trial court, that the fact that the request for eavesdropping originated with the IBI rather than the State's Attorney was not sufficient justification for suppression of the tape recordings, and that holding is not questioned here.

The earlier quoted section 14-2(a), of the eavesdropping statute, which was in effect at the time of these activities in 1975, differs significantly from both prior and subsequent eavesdropping enactments. The earlier version of section 14-2(a) provided that a person committed the crime of eavesdropping when he used an eavesdropping device to hear or record an oral conversation "without the consent of any party thereto" (Ill. Rev. Stat. 1961, ch. 38, par. 14-2(a)). In People v. Kurth (1966), 34 Ill.2d 387, a divided court interpreted that language to mean that "any party who has not consented to the recording or transmission of his conversation may bar its admission in evidence against him." 34 Ill.2d 387, 395; but see specially concurring opinions of Schaefer and Underwood, JJ., and People v. Richardson (1975), 60 Ill.2d 189.

The most recent version of section 14-2(a), which became effective on July 1, 1976, involves detailed provisions precluding recording of a conversation unless it is done either (1) with the consent of all of the parties to the conversation, or (2) with the consent of any one party to the conversation and with judicial approval pursuant to article 108A of the Code of Criminal Procedure. Ill. Rev. Stat. 1977, ch. 38, par. 14-2(a).

The proper interpretation of section 14-2(a) as it existed at the time of the activities with which we are concerned (Ill. Rev. Stat. 1975, ch. 38, par. 14-2(a)) has been the source of differing opinions in recent appellate court cases. On the same day in which the Fifth District Appellate Court handed down its opinion in the present case, a different panel in the same district reached the opposite conclusion on similar facts and issues. (People v. Mosley (1978), 63 Ill. App.3d 437.) The decisions from the other districts are also in conflict. (Compare, e.g., People v. Porcelli (1st Dist. 1974), 25 Ill. App.3d 145, with People v. Klingenberg (2d Dist. 1975), 34 Ill. App.3d 705, and People v. Knight (4th Dist. 1975), 28 Ill. App.3d 232.) We granted the State leave to appeal so as to enable us to resolve the controversy.

It is apparent that the only issue is interpretation rather than constitutionality of the statute, for its literal interpretation does not conflict with either the Federal or State constitutions. Monitoring and recording a conversation without a warrant, but with the consent of one of the parties thereto, is consistent with the fourth amendment. (United States v. White (1971), 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122; ...

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