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People v. Gervasi

OPINION FILED APRIL 16, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOHN GERVASI ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. R. Eugene Pincham, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The defendants, John Gervasi and Michael Ettinger, were charged in a nine-count indictment with bribery, solicitation, and conspiracy in the circuit court of Cook County. At a hearing on a motion to suppress evidence, it was stipulated that telephone conversations between the defendants and police officers were overheard by court reporters who were listening on extension telephones from which the speaking element had been removed. Also, other conversations were overheard by investigators and court reporters without any listening devices. All the conversations were taken down by the court reporters using a stenograph machine. The trial court, on defendants' motion, suppressed all transcripts of and testimony relating to the conversations. The appellate court affirmed in part and remanded for a hearing on whether the testimony and transcripts of the in-person conversations should have been suppressed. (90 Ill. App.3d 1117.) We granted the State leave to appeal. 73 Ill.2d R. 315.

Charles Soteras, while driving a stolen automobile, was arrested by Blue Island police officer Daniel Furay and Sergeant Paul Barnes. Defendant Gervasi, an attorney, was called to the police station to represent Soteras.

Gervasi told Furay that he would contact him later. Several days later, Furay received a business card from defendant Gervasi with the following words written on the back: "Danny, Going out of town Saturday, Sunday, Monday. Will return Tuesday afternoon. Could you please call. I would like to talk to you." Furay, believing that he would be offered money to help Soteras in his pending criminal case, contacted the Cook County State's Attorney's office. A plan was devised to monitor the conversations between defendant Gervasi and Furay.

During the next two months, Gervasi called Furay at his home 20 times. A court reporter, employed by the State's Attorney's office, was present and listened to all of the conversations on an extension telephone in the Furay home. The telephone was a regular telephone that had been in the home for several years. On each occasion, the reporter removed the speaking element in the mouthpiece of the telephone, listened to the conversation and transcribed it with "the same type of manually operated machine used by most court reporters in the courtroom." On three occasions Furay called Gervasi. One call was made from Furay's home and the other two were made from the State's Attorney's office. These conversations were monitored by court reporters on extension phones which had been similarly altered.

Gervasi also visited Furay at his home on four occasions. On two occasions, a court reporter was located so that he could overhear the conversation, which he recorded by use of a stenograph machine.

Officer Furay had six telephone conversations with defendant Ettinger, also an attorney. The same technique as described above was used to record the conversations with defendant Ettinger.

There were three telephone conversations between defendant Gervasi and an assistant State's Attorney. Also, one telephone conversation took place between Gervasi and Sergeant Barnes. These conversations were monitored and recorded using the same technique described above.

The trial court held that an eavesdropping device as defined in section 14-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14-1) had been used to transcribe the telephone conversations and that the State's Attorney's office had not received judicial approval as provided in section 108A-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108A-1). The trial court entered an order suppressing the court reporters' transcripts of both the telephone and in-person conversations between the defendants and investigators. Also, the court suppressed the prospective testimony of the court reporters and the police officers regarding all conversations with the defendants. The appellate court affirmed but remanded with directions to conduct a hearing to determine whether the testimony of Officer Furay and the court reporters "regarding the in-person conversations and the transcripts of these conversations were the fruit of the poisonous tree."

The State argues that no eavesdropping device was used in this instance and that, therefore, no judicial authorization was required. Secondly, the State argues that, even if there was an eavesdropping device in use, the testimony of Office Furay was not tainted in any way and, therefore, should not be suppressed.

We first consider whether an extension telephone with the speaking element removed from the mouthpiece is an eavesdropping device as defined in section 14-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14-1(a)), which states that an eavesdropping device is "any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means." (Ill. Rev. Stat. 1977, ch. 38, par. 14-1(a).) In People v. Gaines (1981), 88 Ill.2d 342, we held that an extension telephone was not an eavesdropping device within the statutory definition. In Gaines we reaffirmed this court's holding in People v. Dixon (1961), 22 Ill.2d 513, which was decided under the 1959 eavesdropping statute and applied the holding in Dixon to the current definition of an eavesdropping device in section 14-1(a) of the Criminal Code of 1961. We stated in Gaines that the basis of the Dixon decision must have been "that the statute is directed against the use of devices other than the telephone itself when the latter has not been functionally altered." (People v. Gaines (1981), 88 Ill.2d 342, 363.) An extension telephone by itself, therefore, is not an eavesdropping device. However, if it has been "functionally altered" in some manner so that it is no longer capable of performing its customary function it is no longer a telephone.

The function of a telephone is to transmit and receive sound. A telephone which is altered so that it can no longer perform one of these functions, namely the transmission of sound, is not a telephone but only a listening device. The removal of the transmitter or speaking element from the mouthpiece of each of the telephones made them eavesdropping devices within the meaning of our statute.

We next consider the effect of the illegal monitoring of these telephone conversations. Since one party to the conversations had consented to the monitoring, neither the Federal Constitution, nor the constitution of this State was offended. (People v. Kezerian (1979), 77 Ill.2d 121; People v. Richardson (1975), 60 Ill.2d 189.) However, section 14-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14-5) provides:

"Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *."

Also, article 108A of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108A-1 et seq.) provides for judicial supervision of the use of eavesdropping devices and states:

"(a) Any aggrieved person in any judicial or administrative proceeding may move to suppress the contents of any recorded conversation or evidence derived therefrom * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 108A-9.)

By virtue of these two statutory provisions, the trial court properly suppressed the testimony of the court reporters as to the telephone conversations and the transcripts of what they heard by use of the altered extension telephones.

The appellate court held that the prospective testimony of Officer Furay, Sergeant Barnes and Assistant State's Attorney Burnham, participants in the various conversations, was "fruit of the poisonous tree" and should be suppressed. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) The State argues that the "fruit of the poisonous tree" doctrine does not apply in this instance since the knowledge of the investigators was not derived from an unlawful act and that an independent basis exists for the investigators' knowledge of the contents of the conversations.

The test of whether evidence is "fruit of the poisonous tree" is best stated in Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L.Ed.2d ...


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