SUPREME COURT OF ILLINOIS
539 N.E.2d 1238, 128 Ill. 2d 480, 132 Ill. Dec. 432 1989.IL.787
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Michael B. Getty, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
On July 12, 1983, the defendant, Stephen Shinkle, was indicted in the circuit court of Cook County for arson and conspiracy to commit arson. Prior to trial, defendant moved to suppress evidence which was allegedly obtained in violation of the Illinois eavesdropping statutes. The circuit court Judge denied the defendant's motion. The cause proceeded to jury trial, and on May 2, 1985, defendant was found guilty as charged. The defendant appealed his conviction and sentence to the appellate court. The appellate court held that the trial court's refusal to suppress evidence obtained in violation of the Illinois eavesdropping statute constituted reversible error. We granted the State's petition for leave to appeal under Supreme Court Rule 315 (107 Ill. 2d R. 315).
On July 12, 1983, the defendant was charged by grand jury indictment with two counts of arson (Ill. Rev. Stat. 1983, ch. 38, par. 20-1(a)), and one count of conspiracy to commit arson (Ill. Rev. Stat. 1983, ch. 38, par. 8-2). Defendant's co-conspirator, Larry Thompson, was also indicted on charges of arson and conspiracy to commit arson. The defendant subsequently appeared with counsel and entered a plea of not guilty.
On May 9, 1984, the defendant filed a motion to suppress evidence alleging that on June 22, 1983, an agent of the Oak Park police department used an electronic listening device to overhear a conversation between defendant and his co-conspirator. This conduct occurred without the consent of the defendant, without a warrant, and without the authorization of a Judge of the circuit court. As a result, the defendant asserted that the conduct constituted eavesdropping in violation of the United States Constitution, the Illinois Constitution, and Illinois law. The defendant thus moved for suppression of all evidence obtained relating to the conversation.
On September 5, 1984, hearing was held on the motion to suppress. The defense first called Larry Thompson, defendant's co-conspirator, who testified that on the evening of June 22, 1983, he was at the Oak Park police department with Detective Frank Michalek. At that time, Michalek instructed Thompson to telephone the defendant. After Thompson dialed defendant's telephone number, Michalek picked up an extension phone which was located in the same room. Michalek placed the receiver of the telephone to his ear with his hand over the mouthpiece and listened as Thompson engaged in a conversation with the defendant. At no time was the defendant informed that Michalek was listening to the conversation on an extension telephone.
Detective Michalek corroborated the testimony of Thompson. He stated that he directed Thompson to place a call to the defendant and then listened to the conversation on the extension. According to Michalek, Thompson willingly allowed the conversation to be monitored. Michalek further acknowledged that the defendant was unaware that the conversation was being heard by a third party. Michalek testified that he took notes of the conversation, which were later transcribed and filed with the police reports. Michalek admitted that he did not possess a warrant or any court authorization to eavesdrop. This was the sum of the evidence presented at the hearing.
Based upon this evidence, the circuit court Judge found that in light of available technology, Illinois case law, and the fact that the extension telephone was unaltered, there was no eavesdropping device and thus no eavesdropping violation. As a result, the circuit court Judge denied the defendant's motion to suppress.
On April 29, 1985, trial commenced. The evidence presented at trial is set out in detail in the appellate court Disposition. Because of the limited nature of our review, we shall only reiterate the evidence relevant to the eavesdropping issue.
Thompson testified that on June 22, 1983, under the direction of Michalek, he placed a telephone call to the defendant. Michalek, who was in the same office, listened to the conversation on an extension phone with his hand held over the mouthpiece. Thompson testified at trial that during the conversation he asked the defendant to meet him and pay him the money still owing for the arson of defendant's office. The defendant told Thompson he did not want Thompson to call and that he would meet with him the next evening to give him the money. Thompson admitted that he could not give a verbatim account of the conversation. Thompson finally testified that he had been indicted on two counts of arson and one count of conspiracy. He indicated that the State's Attorney had promised him probation in exchange for his testimony against defendant.
Detective Michalek testified at trial corroborating the testimony of Thompson. Michalek additionally reiterated his ...