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People v. Holowko

OPINION FILED MAY 25, 1984.

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

v.

SERGEI HOLOWKO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Lester D. McCurrie, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

The State has taken this interlocutory appeal pursuant to Supreme Court Rule 604(a) (87 Ill.2d R. 604(a)) from the trial court's order granting defendant's motion in limine to exclude from evidence certain telephone records which the State sought to introduce at trial.

Defendant was charged by misdemeanor complaint on January 3, 1983, for the offense of harassment by telephone (Ill. Rev. Stat. 1981, ch. 134, par. 16.4-1(1)). The complaint alleged that defendant did make a phone call with conversation, at which time he made a comment which was obscene with intent to offend the complainant.

Prior to trial, defendant filed a motion in limine, alleging that he was charged with the offense of harassment by telephone; that as part of their investigation of said offense, the Palos Park police and Illinois Bell Telephone Company placed a trap on complainant's telephone; and that as a result of that investigation, certain records were made by the Illinois Bell Telephone Company pertaining to the trap which defendant believed the State would seek to introduce into evidence against him. Further, it alleged that such records were inadmissible because said records were made as part of anticipated litigation and in the course of an investigation. Ill. Rev. Stat. 1981, ch. 38, par. 115-5(c)(2).

On March 31, 1983, the motion in limine was heard. Defendant argued that telephone records which the State sought to introduce were inadmissible because they were kept pursuant to an investigation or a contemplated investigation. He further called upon the court to follow a prior evidentiary ruling involving this same defendant and offense, in which the same motion in limine was sustained.

In response, the State argued that the police department and phone company must make some type of inquiry as to where the offense telephone calls originate from when a complaint is made; that there was no investigation pending at the time the phone company put a trap on complainant's phone line; and that the trial court's granting of defendant's motion would render section 16.4-1, requiring telephone companies to cooperate with police investigations, useless.

Relying on testimony from the prior evidentiary hearing concerning this same defendant which established that the telephone company installed the "trap" at the request of police, the trial court "saw no alternative but to grant" defendant's motion. Further, the court granted the State's motion to strike with leave to reinstate their action. *fn1

The State thereafter filed a notice of appeal pursuant to Supreme Court Rule 604(a) (87 Ill.2d R. 604(a)) on April 6, 1983, certifying that the suppression of these telephone records substantially impaired the State's ability to prosecute the instant action.

The State raises one issue on appeal: whether the trial court erred as a matter of law in granting defendant's motion in limine barring the admission of evidence obtained through the telephone company's "trap" on complainant's phone line. The defendant's brief raises the additional issue of whether the State's prosecution of this case was so impaired by the trial court's order granting defendant's motion in limine so as to allow the State an appeal from this order under Supreme Court Rule 604(a).

OPINION

We first turn to consider the jurisdictional issue as to whether the State is allowed to appeal the trial court's pretrial order granting defendant's motion in limine.

Defendant relies on his motion to dismiss the appeal, taken with this case, for his position that these telephone "trap" records are merely corroborative of the acts alleged by the State in its complaint, and therefore in no way "substantially impair" the State's ability to prosecute this matter.

It is the State's position that Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)) allows the interlocutory appeal of this pretrial order granting defendant's motion in limine upon the State's certification to the trial court that its ability to prosecute the instant case has been substantially impaired as a result of the trial court's order.

Supreme Court Rule 604 provides in relevant part that "[i]n criminal cases the State may appeal only from an order or judgment the substantive effect of which results in * * * ...


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