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November 19, 1997


Appeal from the Circuit Court of McHenry County. Nos. 93--CF--132, 93--CF--133. Honorable Conrad F. Floeter, Judge, Presiding.

Rehearing Denied January 2, 1998. Released for Publication January 2, 1998.

The Honorable Justice Rathje delivered the opinion of the court. Doyle and Thomas, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

The defendants, Herbert J. Pitzman and Randall E. Beu, were each charged in an amended indictment with 23 counts of eavesdropping (720 ILCS 5/14--2(a) (West 1992)) and 2 counts of conspiracy to commit eavesdropping (720 ILCS 5/8--2(a) (West 1992)). The case proceeded as a bench trial. At the close of the State's case, the trial court dismissed both conspiracy counts and all but six of the eavesdropping counts against each of the defendants. At the close of all the evidence, the defendants were each convicted of six counts of eavesdropping (counts VI, XIII, XIV, XV, XVI, and XVII). Following a hearing on the defendants' posttrial motion, the trial court vacated the finding of guilty as to the convictions on counts VI, XIII, and XVII. On the remaining three counts, each of the defendants was sentenced to a term of 24 months' conditional discharge and ordered to pay a fine of $2,000 per count.

The defendants appeal their convictions and sentences, raising the following issues: (1) whether the telecommunications equipment in the Woodstock police department is an eavesdropping device under the statutory definitions; (2) whether the circumstances surrounding the tape-recorded conversations justified the claimed expectations that the conversations would be private; (3) whether the defendants possessed the requisite criminal intent; and (4) whether the sentence was excessive. Because the first issue raised is dispositive of this appeal, we will not address the remaining issues.

By way of background, at the time of the incidents from which these charges arose, Mr. Pitzman was the chief of police of Woodstock; Mr. Beu was a sergeant of the Woodstock police and was the assistant to Chief Pitzman. Both defendants had retired from the police department at the time of trial.

We summarize the pertinent testimony as follows. Prior to 1992, the Woodstock police department telecommunications room utilized a Dictaphone Model 5000 reel-to-reel tape logger; a telephone at the dispatch console equipped with a device known as "call check"; and two other telephones, which did not have call check. Any call to the police department that came into the console would be taped by both the dictaphone and the call check.

The significant difference between the logger and the call check was that the call check device recorded approximately 20 to 30 minutes of conversation and retained it for an hour or two. After the call check device was filled, it reset and recorded over the earlier recording. The recordings from the tape logger were retained.

The police department telephone lines, consisting of two 911 lines and four nonemergency numbers, were wired directly into the dictaphone logger. There were audible "beeps" on the lines to indicate that a call was being taped. Three other lines consisting of the chief of police's line, the detectives' line, and the 338-7799 (hereinafter 7799) line were not wired into the logger. The 7799 number was unlisted, and the dispatchers were required to answer that line with a simple "hello" rather than indicate to the caller that he or she had reached the police department. The 7799 line was intended to be used by members of the police department to avoid tying up the regular police department lines. However, if a call came in on the 7799 line through the console, it was recorded on the call check.

In December 1982, a memorandum from the then Woodstock chief of police, William Patrick, advised the employees that the dictaphone recorder was in full operation and further advised them as to the procedures to be followed with regard to changing or listening to a tape. The memorandum further provided as follows:

"As you know, all the telephone lines are taped with the exception of 338-7799. The line was intentionally left untaped to allow for personal calls, however, we request that you keep those calls brief and to a minimum."

At that time, the manual used to train the dispatchers also provided that 7799 was an "untaped line."

On February 10, 1988, Chief Pitzman issued "General Order Number SE" which outlined the procedures to be followed in the event of "alarm calls." As part of the plan covering financial institution alarms, the order provided:

"Anytime Communications is contacting an establishment via telephone, an untaped line from the Communications console will be used."

The order further provided:

"A taped record of the call will be made available to the Investigative Division from the call check recorder at the radio console."

In March 1988, Brenda Nelson, at that time assistant supervisor in the communications area, sent out a memorandum to the communications personnel, ...

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