APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
This case presents a series of issues concerning the requirements for an eavesdropping order under article 108A-1 of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, art. 108A-1).
On May 17, 1977, Elmhurst police detective Bob Jones obtained an eavesdropping order from the Circuit Court of Du Page County pursuant to article 108A-1. This eavesdropping request was made in connection with the investigation of alleged incidents of indecent liberties with a child. The suspect in this investigation was a male dance school teacher and the alleged victim was an 11-year-old male dance school student. On May 18, 1977, further court authorization was obtained, pursuant to a complaint for a search warrant, to place an eavesdropping device in the building where the expected conversations were to take place. The search warrant application alleged that a body transmitter would not have been appropriate as the suspect could be expected to make non-criminal physical contact with the student prior to the conversations of a criminal nature. Pursuant to these authorizations, an eavesdropping device was installed in a room at Elmhurst College, and potentially incriminating conversations were recorded on the evening of May 18, 1977. The dance school teacher was subsequently arrested and is the defendant in the present case.
Before trial, defendant moved to quash the search warrant and suppress the evidence. After hearing arguments, the trial court granted the motion. The State was granted a rehearing on the motion and the trial court received additional memoranda of law from the parties. On June 12, 1978, the trial court entered an order which again allowed defendant's motion to quash the search warrant. It found that article 108A-1 requires a showing of probable cause before an eavesdropping authorization can issue, that because of this probable cause requirement it would be "redundant" to require a further search warrant to place the eavesdropping device, and that affidavits contained in the application for eavesdropping and the complaint for search warrant did not contain sufficient allegations to establish probable cause. The State has appealed from this order pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1977, ch. 110A, par. 604).
Thus we have a situation where a court authorized the use of an electronic eavesdropping device and, a day later, a search warrant for the implantation of the device at Elmhurst College. However, before trial the search warrant was quashed and the recordings suppressed. Four issues are raised by this appeal: (1) whether section 108A-4 requires probable cause for the issuance of an eavesdropping order, (2) whether an additional search warrant is required for the installation of an electronic surveillance device after the eavesdropping itself has been authorized, (3) whether the application for an eavesdropping authorization and/or the complaint for search warrant contained sufficient information to justify a finding of probable cause, and (4) whether the eavesdropping in this case had the valid consent of one of the parties to the intercepted conversation.
PROBABLE OR REASONABLE CAUSE
Article 108A-1 sets forth a procedure for obtaining judicial supervision of the use of eavesdropping devices in felony investigations where one party to the conversation to be monitored has consented to such monitoring. Section 108A-4 speaks in terms of "reasonable," as opposed to "probable cause," to believe that an individual is committing, has committed, or is about to commit a felony, and to believe that particular conversations concerning that felony will be obtained through the use of an eavesdropping device.
The State concedes that there are numerous cases, including Draper v. United States (1959), 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329, and People v. Lawson (1976), 36 Ill. App.3d 767, 345 N.E.2d 41, which hold that "reasonable grounds" has the same legal effect as "probable cause." However, the State argues that these cases are inapplicable to the present situation.
1 The eavesdropping in this case had the consent of one of the parties to the conversation (the alleged victim). Under the holding in United States v. White (1971), 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122, such "consensual" eavesdropping presents no fourth amendment problems. Thus, there is no constitutionally mandated probable cause requirement as was present in Draper and Lawson for the consensual eavesdropping aspect of the instant case.
The Illinois statute in question was an effort to provide Illinois residents some privacy protections where none are constitutionally mandated. (People v. Richardson (1975), 60 Ill.2d 189, 328 N.E.2d 260.) The State is able to point to the statute's legislative history to support its proposition that a standard less than probable cause was intended by the legislature. Originally section 108A-4 was part of House Bill 212. When submitted to the Governor this bill provided that eavesdropping could be authorized on a judicial determination of "probable cause." In a letter to the legislature the then Governor Walker made a number of recommendations including one to change "probable" to "reasonable":
"The bill requires a court finding of `probable cause' for believing that the suspect has committed or will commit a felony. This language may be construed too technically, it might be construed to require the standard of proof necessary to issue a conventional search warrant. I have therefore recommended changing `probable' to `reasonable' in this and several other closely related section." (Letter to the House of Representatives dated September 26, 1975.)
The legislature amended the bill accordingly. In light of this legislative history and of the lack of a Federal constitutional mandate, the State suggests that we conclude that eavesdropping may be ordered on a showing of less than probable cause in a case where one party has consented to the eavesdropping. We need not decide this issue however because probable cause had to be established as an entry was required to install the device.
THE ENTRY REQUIRES PROBABLE CAUSE
The trial court found that because there was a probable cause requirement for the eavesdropping order, to require a search warrant to place the device was redundant. At the time the court made this finding there was a split among the courts> that had considered this issue. In the recent case of Dalia v. United States (1979), ___ U.S. ___, 60 L.Ed.2d 177, 99 S.Ct. 1682, the United States Supreme Court held that because an electronic eavesdropping authorization under Federal law must be made ...