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People v. O'dell

OPINION FILED MAY 16, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HARRY O'DELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Defendant Harry O'Dell and his wife, Pansy O'Dell, were jointly indicted for arson, attempt arson, solicitation to commit arson, conspiracy to commit arson, and theft by deception over $150. Mr. and Mrs. O'Dell were the owners of two apartment buildings, 1633 and 1637 North 45th Street, in East St. Louis, one of which was destroyed and the other damaged by a gasoline-based fire caused by arson on July 16, 1975. As a result of the fire, the O'Dells received a total of $34,357.48 from their insurer, Hartford Insurance Company.

Defendant was granted a severance prior to trial. On January 24, 1979, he was tried by a jury and found guilty of arson, attempt arson, and both counts of theft by deception. Verdicts were directed in his favor on the other charges. The court sentenced him to concurrent terms of two years' probation for each offense and to a fine of $10,000 for the arson.

On appeal, defendant challenges the trial court's denial of his motion to suppress the tape recording of his conversation with an informant for the Illinois Division of Criminal Investigation. He also challenges the sufficiency of the arson indictment, and alleges certain errors at trial.

For the reasons hereinafter set forth, we affirm.

The use of eavesdropping devices, where one party to the conversation consents, is controlled by article 108A of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 108A). Application is made to a circuit judge for an order authorizing such monitoring, and the application must be authorized by the State's Attorney. (Ill. Rev. Stat. 1977, ch. 38, par. 108A-1.) The written application must include, inter alia, (1) the identity of the law enforcement officer making the application and the authorizing State's Attorney; (2) a statement of the facts and circumstances relied upon, including (a) details of the felony involved; (b) a description of the type of communication sought to be monitored; (c) the identity of the consenting party; and (d) if known, the identity of the person whose conversations are to be overheard; and (3) a statement of "the period of time for which the use of the device is to be maintained or, if the nature of the investigation is such that the authorization for use of the device should not terminate automatically when the described type of communication is overheard or recorded, a description of facts establishing reasonable cause to believe that additional conversations of the same type will occur thereafter." Ill. Rev. Stat. 1977, ch. 38, par. 108A-3.

In order to authorize use of the eavesdropping device, the circuit judge must find (a) consent by one party; (b) reasonable cause to believe an individual is committing, has committed, or is about to commit a felony; and (c) reasonable cause to believe that conversations concerning that felony will be obtained through such use. (Ill. Rev. Stat. 1977, ch. 38, par. 108A-4.) The judge's authorizing order must specify (1) the identity of the consenting person; (2) the identity of the other party, if known; and (3) the period of time in which use of the device is authorized, including whether the use shall automatically terminate when the described conversations have been first obtained. Ill. Rev. Stat. 1977, ch. 38, par. 108A-5.

The statute also provides for suppression of the contents of a recording by an aggrieved person. A motion to suppress must be made before trial unless there was no previous opportunity. Ill. Rev. Stat. 1977, ch. 38, par. 108A-9.

In the case at bar, Special Agent Martin McCarthy petitioned for an order authorizing the use of an eavesdropping device. The petition was accompanied by a consent form, executed by Frank Crockett, and an executed authorization from the State's Attorney. To establish that a felony had been, was being, or was about to be committed, the petition asserted as follows:

"Frank Eugene Crockett informed S/A Martin F. McCarthy that on July 16, he, along with Roy Lewis, set a gasoline-based fire and explosion at 1633 North 45th St., East St. Louis, Illinois. He said that he was paid to set afire both 1633 North 45th St. and 1637 North 45th St. by the owner of the properties, Harry O'Dell, of Belleville, Illinois. Crockett said that it was O'Dell's intent to collect the insurance money on the property. The East St. Louis Fire Department record of the explosion at 1633 North 45th indicated that they suspect arson as the cause. A fire department report also indicated that 1637 was saturated with gasoline at the time of the explosion, but that firemen were able to prevent its ignition.

Crockett has met with O'Dell approximately ten (10) times in the past and he discussed the burning of the houses on No. 45th St. several times prior to the explosion."

The petition specified the type of conversation involved, and the location from which it would be monitored. It also specified defendant Harry O'Dell as the party whose conversations were to be overheard. The time period required in the petition was from 9 a.m. September 20, 1977, to 11:59 p.m. on September 24, 1977. The petition requested that the authorization not terminate automatically on the occurrence of a conversation, but continue throughout the five-day period. No separate facts establishing reasonable cause to believe additional conversations would take place were alleged.

On September 19, 1977, the judge entered an order granting the Illinois Division of Criminal Investigation authority to use an eavesdropping device, consistent with the provisions of the petition. On September 21, 1977, Frank Crockett engaged defendant in a recorded conversation at defendant's apartment, in which defendant acknowledged that he had arranged the arson of his properties. Subsequently, defendant was indicted for the instant offenses.

On March 29, 1978, defendant moved to suppress the recorded conversation. No witnesses were called at the hearing on the motion, and it was denied on May 11, 1978. On January 24, 1979, during defendant's opening statement at trial, counsel mentioned that he had interviewed Frank Crockett on June 30, 1978, and that Crockett had stated that he had never had a conversation with defendant prior to the recorded conversation.

At trial, Crockett testified that in early 1975 he had been solicited by Roy Lewis to participate in the arson of the O'Dell buildings. On July 16, 1975, he and Lewis saturated the buildings with gasoline and used cigarettes and matches as a delayed ignition. Prior to that date Crockett had at least 12 discussions with Roy Lewis concerning the proposed fires. Defendant had been at Lewis' home during "a couple" of the discussions which occurred in defendant's presence, although the defendant and Crockett had not conversed directly. Crockett also testified that prior to September 21, 1977, he had not told Agent McCarthy that he had had 10 conversations with the defendant. However, he asserted that prior to the recorded conversation he may have been in defendant's company a total of approximately 10 times, one such meeting occurring in the house where defendant resided at that time. He further testified that defendant agreed to pay Lewis and him a total of $3,000 per house, and that they were paid for only one house.

Defendant's first issue on appeal challenges the court's order authorizing the eavesdrop and recording of his conversation with Frank Crockett. He (1) asserts a lack of "reasonable cause" for believing that defendant was committing or had committed the felony of arson or for believing that particular conversations concerning the arson would be obtained through the eavesdrop, and (2) claims that the order was fatally defective for failure to terminate automatically upon the occurrence of the conversation, since the petition did not allege any facts to show why the eavesdrop should not so terminate.

We first note that eavesdrops made with one-party consents are not in violation of the fourth amendment. (United States v. White (1971), 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122.) Article 1, section 6 of the 1970 Illinois Constitution merely prohibits "unreasonable * * * interceptions of communications by eavesdropping devices or other means." This prohibition is directed against wiretaps where the consent of no party is obtained; one-party consent recordings are accepted as reasonable and beyond the scope of the fourth amendment guarantees. (People v. Mosley (1978), 63 Ill. App.3d 437, 379 N.E.2d 1240, 1244.) Accordingly, restrictions on one-party consent recordings are statutory only and not unconstitutional.

Defendant first highlights the two-year time interval between the fire and the filing of the eavesdrop petition, and asserts that "remoteness" or "staleness" removed any reasonable cause to believe that a conversation concerning the arson would take place. He compares the instant case with cases involving search warrants, where the interval between the "viewing" and the search warrant is an important consideration in determining probable cause.

• 1 However, those cases are inapposite here. Whether there is probable cause to believe that the subject matter of a search will be found at a given location clearly depends on timeliness of the allegations in the affidavit for the search warrant. Objects are easily moved. On the other hand, a felon's guilty knowledge is usually retained, and whether or not it will surface in conversation is therefore not particularly dependent on considerations of time. Furthermore, even the search warrant cases cited by defendant stand for the proposition that there can be no formulized time limit set on how old the information contained in the affidavit may be; rather, whether or not it is too remote must depend upon all the facts and circumstances of the particular case. (People v. Morrison (1973), 13 Ill. App.3d 652, 300 N.E.2d 325; People v. Stephens (1973), 12 Ill. App.3d 215, 297 N.E.2d ...


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