APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, James C. Satek, was indicted for armed robbery. The trial court suppressed certain testimony of James Poghen, Jr., a prospective witness for the State in the defendant's trial, after finding that the testimony was obtained in violation of the Illinois eavesdropping statute. The evidence in this record indicates that Poghen participated in the robbery with the defendant. The State appeals the suppression of Poghen's testimony.
The portions of the Illinois eavesdropping statute (Ill. Rev. Stat. 1973, ch. 38, par. 14-1 et seq.) relevant to this appeal 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; * * *." Ill. Rev. Stat. 1973, ch. 38, par. 14-2(a).
"Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *." Ill. Rev. Stat. 1973, ch. 38, par. 14-5.
"The following activities shall be exempt from the provisions of this Article:
(d) Recording or listening with the aid of any device to any emergency communication made in the normal course of operations by any * * * local law enforcement agency * * *." Ill. Rev. Stat. 1973, ch. 38, par. 14-3(d).
The State denies that the eavesdropping was illegal. Further, it denies that the defendant had standing to protest the eavesdropping of Poghen, a third party. Finally, it asserts that even if the eavesdropping was illegal, and even if the defendant has standing under the statute, Poghen's testimony should not be restricted because he had first hand knowledge of the robbery, independent of the recording.
The evidence at the hearing on the motion to suppress consisted of testimony by village of Bridgeview police officer, Kenneth Osterman, and a stipulation as to the testimony which would be given by William Rasberry, a taxicab driver who witnessed the robbery.
If called as a witness, Rasberry would have testified that he was in his taxicab at a drive-in Photomat store on December 31, 1974. The persons in the truck in front of him were acting suspiciously and, when they drove away, Rasberry asked the woman at the booth if she had been robbed. She responded affirmatively and Rasberry followed the truck. The two men fled from the truck after driving some distance. Rasberry was still watching the truck when the police came along and Rasberry told them in which direction the robbers had gone. The police located Poghen within five minutes, near a private residence. When asked by a police officer what he was doing there, he said, "I've come to visit someone at that house." He said he was looking for a friend from work but he was unable to remember the friend's name. The officer went up to the house and rang the door bell. A woman answered the door and the police asked if she knew Poghen. She said she had never seen him before. Poghen was arrested and charged with the armed robbery of the Photomat store, but he was never indicted. When Poghen was searched, $81 was found in his sock. The robbery proceeds amounted to $185.
Osterman testified that Poghen was arrested and taken to the village of Bridgeview police station about 5 p.m. on the day of the robbery. He was put in the lockup and, about half an hour later, placed in a lineup where he was identified by Rasberry. Poghen did not make any comment when he told that he had been identified. About an hour later, Osterman asked Poghen if he wanted to make a phone call. He responded affirmatively and was taken to Osterman's office to make the call.
Osterman testified that there are no public phones at the police station. All calls are automatically recorded on the station's emergency call system. The recording machine makes a beeping sound every 10 or 15 seconds which indicates to the speaker that the telephone conversation is being taped.
Osterman's office, from where the call was made, measures approximately 9' by 9'. Poghen was not left alone during the phone call. Either Osterman or another policeman was in the room the entire time. Osterman heard Poghen mention "mother" and also heard the name "Jim." The record contains no further information about the contents of the tape. Poghen was put back into the lockup. About half an hour later Osterman talked to him again. Poghen said he always put his money in his sock because he was afraid of being robbed, and that when he was arrested he was on his way to visit a friend from work, but that he could not remember the friend's name. Osterman told him the woman who lived in the house outside of ...