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People v. Moore

OPINION FILED NOVEMBER 26, 1980.

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

v.

JOHN R. MOORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Pike County; the Hon. ALFRED L. PEZMAN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was convicted of the offense of solicitation to commit murder after a jury trial in the circuit court of Pike County in violation of section 8-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8-1). He was afterwards sentenced to 10 years' imprisonment.

The evidence at trial was relatively brief and consisted principally of the testimony of an undercover agent for the criminal investigation division of the Illinois Department of Law Enforcement and certain tapes of conversations which the agent had with the defendant. These tapes were made pursuant to an eavesdropping authorization obtained from a circuit judge sitting in Pike County. Errors relating to the tapes and the authorization order are the principal contentions on appeal.

The undercover agent testified as to conversations which he had had with the defendant on October 23 and 24, 1978, in Pittsfield. The sum of the conversations was that defendant would pay the agent $2,500 to murder Michael Watson, who was then married to defendant's former wife. The agent and defendant were unknown to each other prior to this time, but the authorities had received information from other persons in Hannibal, Missouri, that defendant was known to be seeking someone to commit the homicide. On the basis of this information, the agent first called defendant at his place of business and made arrangements to meet him later in the day at a lounge in Pittsfield to discuss the matter further. After these further discussions on October 23 and 24, defendant was arrested for the offense charged.

During the further discussions the agent was equipped with an eavesdropping device secreted upon his body. No issue has been raised concerning the efficacy of the device except for an objection to the tapes made therefrom as being partially inaudible. The device picked up the conversations of the agent and defendant and broadcast them within a short range where they were recorded on the tapes by other agents stationed in a van nearby.

The tapes, which were introduced into evidence and played for the jury, essentially corroborated the agent's oral testimony. Defendant offered no evidence.

Defendant has raised a variety of issues on appeal, the first of which concerns the tapes and the method of their acquisition. The State's Attorney made application for the use of an eavesdropping device to a circuit judge sitting in Pike County under the provisions of article 108A of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 108A-1 et seq.) and as indicated above, authority was granted and a written order entered thereon. Prior to trial defendant filed a motion seeking to quash that order and to suppress the tapes. The trial court denied the motion, and defendant assigns numerous errors in that ruling.

• 1 Defendant first claims that the judge was without jurisdiction to enter the order since the facts relied upon by the affiant in making application occurred in Missouri. Defendant contends that only a Missouri court could enter the order. We do not agree. There is no such requirement in the statute whose principal emphasis is on the felony about to be committed, not on the place wherein any preliminaries have occurred.

Defendant's next argument is that there was insufficient information in the application to create the "reasonable cause" required by sections 108A-4(b) and (c) of the Code (Ill. Rev. Stat. 1979, ch. 38, pars. 108A-4(b) and (c)) as grounds for approval of the authorization.

The portion of the application in question reads as follows:

"* * * 3. The felony of Solicitation [MURDER] has been, is, or is about to be committed, such belief being based on the following facts: John R. Moore has in the past sixty days attempted to solicit someone to murder Michael Watson of Pittsfield, Illinois, and has made it known the offer is open and money is available for payment for said murder."

Analogizing to search warrant complaints, defendant claims that the foregoing indicates that the information has come from an informant, and it is so lacking in detail that the judge could not be informed of the underlying circumstances from which the informant drew his information and from which the affiant in the application could be certain of the credibility of the informant under the Aguilar test. (Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) We believe that there exists a fundamental difference between an application for a search warrant and an application for the use of an eavesdropping device.

Section 108-3 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 108-3) sets forth the grounds for a search warrant and if they are based on hearsay or upon information furnished by an informant, they must meet the Aguilar test. A defective complaint for a search warrant cannot be cured by extrinsic evidence. People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26.

On the other hand, section 108A-3(b) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 108A-3(b)) specifically contemplates and authorizes the judge to whom an application for use of an eavesdropping device is made to request "additional testimony, witnesses, or evidence in support of the application." In the instant case the record is clear that such additional testimony was taken before the issuing judge, but it has not been preserved in the record. Indeed, at the hearing on the motion to suppress defendant objected ...


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