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People v. Beardsley





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of McHenry County, the Hon. Michael S. Sullivan, JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of McHenry County, the defendant, Robert Beardsley, was found guilty of the offenses of speeding (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-601(b)) and eavesdropping (Ill. Rev. Stat. 1983, ch. 38, par. 14-2(a)). The defendant was fined $75 for speeding, $500 for eavesdropping, and sentenced to 12 months' probation with 10 hours of public service. The appellate court affirmed (139 Ill. App.3d 819), and we allowed the defendant's petition for leave to appeal (103 Ill.2d R. 315). Only the eavesdropping conviction is involved in this appeal.

On January 7, 1984, the defendant was stopped by Deputy Ronald Page of the McHenry County sheriff's department for traveling 67 miles per hour in a 55-mile-per-hour zone. Deputy Page advised the defendant of the speeding violation and requested his driver's license. The defendant, however, demanded to speak with counsel. The officer again requested the defendant's driver's license, but the defendant refused to produce it. The officer then asked the defendant his name, but the defendant reiterated his demand to speak with counsel.

As Deputy Page stood by the defendant's automobile, he noticed that the defendant was holding a microphone in his left hand approximately six inches below the door panel of the vehicle. The officer asked the defendant to stop recording any conversation, as the officer had not given the defendant consent to make a recording. The defendant, however, responded that it was legal as long as he, the defendant, consented to the recording. The officer disagreed and informed the defendant that he could possibly be charged with eavesdropping. After the defendant again refused to produce his driver's license, Deputy Page asked the defendant to get out of his vehicle. As he was doing so, he held a small tape recorder which appeared to be operating, as the red recording light was lit. (Although the light was lit, it was revealed at trial that the recorder was not operating because the microphone was not activated.) After performing a custodial search of the defendant's person, the officer placed the defendant in the rear seat of his squad car.

Once in the squad car, Deputy Page asked the defendant several times for his driver's license, which requests were refused. The officer then radioed his supervisor, Sergeant Hunt, to meet him at the scene of the traffic stop. The deputy informed Sergeant Hunt of the situation when he arrived. Hunt, who knew the defendant, attempted to persuade him to turn over his driver's license. The defendant, after again refusing until he could speak with counsel, was placed under arrest for speeding and for failing to produce a driver's license. The officers then arranged for the towing of the defendant's car. While waiting for the tow truck, the officers sat in the front seat of Deputy Page's squad car and conversed. As they spoke, the defendant recorded their conversation. According to the officers' trial testimony, neither one of them gave the defendant his consent to record their conversation. Both officers also indicated that they were unaware that the defendant was taping their conversation. After the tow truck arrived at the scene, Deputy Page transported the defendant to the county jail. The tape recorder remained in the defendant's possession until the defendant was later placed in a cell.

The jury found the defendant guilty of both eavesdropping and speeding, and the court then imposed the sentences above indicated. On appeal, the defendant contended that he participated in the conversation between Deputy Page and Sergeant Hunt and, therefore, he was improperly charged with eavesdropping because no reasonable expectation of privacy in the conversation existed. The appellate court, however, disagreed. The appellate court concluded that under the plain and clear language of the statute the defendant was properly charged with the offense of eavesdropping and that the evidence supported his conviction. 139 Ill. App.3d 819, 823-26.

The sole issue raised by the defendant in this court is whether his conduct in recording the conversation between Deputy Page and Sergeant Hunt constituted "eavesdropping" within the meaning of section 14-2 of the Criminal Code of 1961, which provides in relevant part:

"A person commits eavesdropping when he:

(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation and in accordance with Article 108A of the `Code of Criminal Procedure of 1963', approved August 14, 1963, as amended." (Ill. Rev. Stat. 1983, ch. 38, par. 14-2(a).)

An eavesdropping device is defined as "any device capable of being used to hear or record oral conversation." Ill. Rev. Stat. 1983, ch. 38, par 14-1(a).

The defendant argues in this court that he was improperly charged with eavesdropping because the conversation he recorded in Deputy Page's squad car was not "private" or "secret," as the defendant was a part of that conversation. The defendant resorts to the common law definition of the offense of eavesdropping and to the common meaning of the term to emphasize that eavesdropping can occur only when parties intend their conversations to be secret or private. The defendant also argues that Deputy Page and Sergeant Hunt impliedly consented to the recording of their conversation. The defendant maintains that the officers knew the defendant had the tape recorder with him in the back seat of the squad car and, yet, they neither physically removed it from his possession nor verbally stopped the defendant by warning him not to record their conversation. Therefore, their acquiescence to the recording of their conversation constituted consent for the purpose of the eavesdropping statute.

The State, in response, resorts to the plain language of the statute and to principles of statutory construction. Because there is no language in the statute that the conversations must be intended to be private or secret, eavesdropping occurs when one records any part of a conversation without the consent of all the parties to the conversation. Hence, the State argues, the defendant was guilty of eavesdropping at the time he recorded Sergeant Hunt's and Deputy Page's conversation in the squad car without their consent.

The defendant relies on the court's interpretation of the eavesdropping statute in People v. Klingenberg (1975), 34 Ill. App.3d 705, to support his position that eavesdropping occurs only when a conversation is intended by the declarant to be private. In that case, the defendant was arrested and charged with driving while under the influence of intoxicating liquor. While in custody, the defendant was requested to perform certain customary physical acts intended to determine the extent of his coordination. Pursuant to a prior written request of the State's Attorney that all such interrogations be videotaped, an audio-visual recording was made of the defendant's responses and his performance of the coordination tasks. Upon the defendant's motion, the circuit court suppressed the audio portion of the recording on the theory that it was made in violation of the eavesdropping statute. The appellate court reversed and held that the recording of the defendant's voice during the incustodial interrogation was not "eavesdropping" within the meaning of the statute. In determining whether the recording of the defendant's responses constituted eavesdropping, the appellate court examined whether the legislature intended to protect this type of communication from interception and stated:

"The Committee Comments on the Illinois eavesdropping statute state that, `The reason for this legislation has, of course, been to protect the privacy of the individual, * * *.' (Committee Comments, Ill. Ann. Stat. ch. 38, art. 14, at 581 (Smith-Hurd 1972).) This stated purpose of the eavesdropping statute conforms with the generally accepted definition of eavesdropping, which is `to listen secretly to what is said in private.' Further, this definition of the term finds support in the common law definition of eavesdropping, which was to stand under the eaves of another home to enable one to hear what was said within the privacy of the home. We also note that throughout the A.B.A. Standards Relating to the Administration of Criminal Justice, Electronic ...

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