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12/22/94 PEOPLE STATE ILLINOIS v. JEFFREY A.

December 22, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
JEFFREY A. HERRINGTON, APPELLEE.



The Honorable Justice Harrison delivered the opinion of the court: Chief Justice Bilandic, dissenting: Justice McMORROW joins in this dissent.

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

The defendant, Jeffrey Herrington, was charged by information on October 31, 1992, with three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12-16(d)) and one count of unlawful delivery of alcoholic liquor to a minor (Ill. Rev. Stat. 1991, ch. 43, par. 131(a)). Following a hearing in the circuit court of Adams County, the trial court granted the defendant's motion to suppress a recording and transcripts of statements made by defendant to the alleged victim which were recorded by the Quincy police department. The trial court held that the tape recording violated the Illinois eavesdropping statute (Ill. Rev. Stat. 1991, ch. 38, par. 14-1 et seq.). The appellate court affirmed. (252 Ill. App. 3d 63.) We granted the State leave to appeal pursuant to Supreme Court Rule 315 (145 Ill. 2d R. 315) and now reverse.

The incident for which defendant was charged took place on October 24, 1992. On October 31, 1992, the alleged victim called defendant at his place of employment from the Quincy police department. The alleged victim placed this call at the request of the Quincy police department. The police recorded the conversation with the consent of the alleged victim. The defendant, however, was unaware that the conversation was being recorded. The recording equipment used was owned by the police department. The conversation was nottransmitted to any other party. There was no court order authorizing the tape recording nor did this recording occur under emergency circumstances.

On January 12, 1993, the defendant filed a motion to suppress the recording and corresponding transcript. The defendant argued, inter alia, that the recording was made in violation of the Illinois eavesdropping statute. The trial court subsequently agreed and granted defendant's motion to suppress the transcript and recording.

The Illinois eavesdropping statute states in relevant part that "[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) in accordance with Article A or Article 108B of the 'Code of Criminal Procedure of 1963.'" (Ill. Rev. Stat. 1991, ch. 38, par. 14-2(a).) An eavesdropping device is defined as "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. 1991, ch. 38, par. 14-1(a).

This court interpreted the above statute in People v. Beardsley (1986), 115 Ill. 2d 47, 104 Ill. Dec. 789, 503 N.E.2d 346. In Beardsley, the defendant was stopped for speeding. The defendant repeatedly refused to produce a driver's license. Defendant was placed in the back of a squad car and subsequently arrested. While waiting for a tow truck, defendant recorded the conversation of two policemen who were seated in the front seat of the car. The policemen testified that they were unaware that defendant was recording their conversation despite the fact that they knew defendant had a tape recorder. The trial court convicted defendant of violating the eavesdropping statute. The appellate court affirmed. This court reversed the appellate court, holding that the eavesdropping statuteshould not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present. Beardsley, 115 Ill. 2d at 56.

Our court in Beardsley relied on the reasoning in Lopez v. United States (1963), 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381. In Lopez, an IRS agent recorded the defendant offering money to him in exchange for concealing a certain tax liability. The Supreme Court found that the recording did not constitute eavesdropping whatever in any proper sense of that term. The Court held further that the government did not use the electronic device to listen in on conversations it could not otherwise have heard but only to obtain the most reliable evidence possible of a conversation in which the government's own agent was a participant and which that agent was fully entitled to disclose.

In Beardsley, this court explained the rationale applied in Lopez. The court held that a party to a conversation should not be restricted in repeating or testifying to what was said to him. The recording of a conversation by a party to that conversation was simply a means of preserving a more accurate account of what he had heard. Therefore, there can be no invasion of an "expectation of privacy" when a party to a conversation makes a recording of that conversation. Beardsley, 115 Ill. 2d at 56.

The defendant in the present case argues that he had a reasonable belief that the conversation between him and the alleged victim was private. We disagree. As stated above, there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation. ( Beardsley, 115 Ill. 2d at 56.) We agree with the appellate court's statement in Bender v. Board of Fire & Police Commissioners (1989), 183 Ill. App. 3d 562, 565, 131 Ill. Dec. 881, 539 N.E.2d 234, that noeavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual."

In the present case, the alleged victim who was a party to the conversation consented to its recording. This recording enabled the alleged victim to preserve a more accurate record of the conversation. The alleged victim did not listen to or record a conversation she could not otherwise have heard. The statements were not transmitted to another party in violation of section 108A-1 et seq. of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 108A-1 et seq.). Following Beardsley, we hold that the recording did not violate the Illinois eavesdropping statute, which allows the recording of a conversation by a party to that conversation.

The recording and corresponding transcript should not have been suppressed. The judgments of the appellate and circuit courts are therefore reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Judgments reversed; cause ...


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