Appeal from the Circuit Court of McLean County; the Hon.
Luther H. Dearborn, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted in the circuit court of McLean County of the offense of theft of property exceeding $150 in value in violation of section 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)). He was sentenced to 12 months' probation and 21 days in the McLean County jail and ordered to make restitution in the amount of $191.
No issue of reasonable doubt is raised, but a brief recapitulation of the facts is in order so that the issues which are raised concerning search and seizure may be more easily understood.
The alleged theft was that of electricity from the Illinois Power Company, the utility which supplied service to defendant's residence in Bloomington. Electrical service to the residence was underground and led from a transformer at the rear and off of defendant's premises. Defendant had been employed as a lineman for another utility for about nine years; his principal duties during that time were to hook up overhead wires, but he had done some underground work. In November 1980 a meter reader for the Illinois Power Company noticed that the billing meter on defendant's house was upside down. As a result of obtaining this information, Illinois Power Company caused a check meter to be installed in the transformer on the service leading to defendant's residence. This was done on June 3, 1981. The check meter and the billing meter on the house were read periodically and the results were forwarded to the billing department of the company. At trial it was established that for the period June 3, 1981, through August 6, 1981, the check meter showed 5,144 and the billing meter showed 1,407 as the number of kilowatt hours used. The value of the discrepancy was established at $191, not including taxes.
During the period from June to August of 1981 a customer supervisor for the Illinois Power Company conferred with an assistant State's Attorney of McLean County concerning the situation at defendant's residence. The supervisor had been a witness for the State in a previous case of the same nature. Among other things, the supervisor told the assistant State's Attorney that the company had installed the check meter and was conducting an investigation into the situation; he inquired about what evidence was needed for criminal prosecution and how to go about obtaining it. The assistant advised that in order to enter the residence it would be necessary to obtain a search warrant. On August 5, 1981, the supervisor told the assistant State's Attorney that on the next day, August 6, the company intended to go upon defendant's premises and dig up the underground service to ascertain if it were being tapped with a bypass device. The assistant advised him that the company had the right to do this and that if anything were found, to call him so that a search warrant might be obtained.
Illinois Power Company personnel went to defendant's premises on August 6. They first disconnected the billing meter and found that the check meter continued to register usage and that a porch light on the residence remained burning. They then excavated the service line into the house and cut it, whereupon the porch light went out. A second hole was dug nearer to the house at the general location of the billing meter and at that place wires branching off from the service were discovered. Company officials then went to the State's Attorney's office where the assistant prepared an application for search warrant. It specified that the items to be seized were the bypass connection on the incoming service line, the electrical equipment inside the house to which the bypass was connected, and the outside connections utilizing the bypassed electricity.
The assistant State's Attorney came to the premises with the police officer who was to serve the search warrant and viewed what was alleged to be the bypass. The warrant was served upon the defendant and the assistant authorized the detachment of the three wires which allegedly constituted the bypass, but further authorized the taking of pictures of the remaining items because to remove them would cut off all electrical service to the premises.
Defendant's motion to suppress the evidence obtained and to quash the search warrant was denied. He testified that he gave no consent to the placement of the check meter and no consent to the entry and excavations upon his premises.
On appeal defendant's principal issue concerns the trial court's denial of his motion to suppress evidence, which he contends is error. Two additional issues are raised: (1) error in refusing to quash the search warrant when the warrant alleged theft of services and the ultimate charge was theft of property exceeding $150, and (2) error in admitting certain rate schedules of the Illinois Power Company. We find no error and affirm.
As to the issue of suppression, the position of the parties is straightforward: defendant claims that the participation of the assistant State's Attorney in the affair makes the search one by the government, the protection of the fourth amendment applies, and his rights were violated by the company's actions. The State argues that defendant lacked any expectation of privacy in the areas searched and hence there was no violation.
We believe that the answer is somewhat narrower than either contention: the Illinois Power Company was authorized by law to enter upon the premises and therefore either the participation of the assistant State's Attorney or the defendant's expectation of privacy are irrelevant.
The company's legal authorization stems from a portion of its tariff filing with the Illinois Commerce Commission. Pertinent portions of that filing entitled "Rules, Regulations and Conditions Applying to Electric Service" provide as follows:
"1. GENERAL INFORMATION AND ...