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People v. O'Dette

Court of Appeals of Illinois, Second District

March 13, 2017

STEPHEN A. O'DETTE, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County. No. 14-CF-581 Honorable Daniel B. Shanes, Judge, Presiding.

          JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.



         ¶ 1 After a stipulated bench trial, defendant, Stephen A. O'Dette, [1] was convicted of possessing child pornography (720 ILCS 5/11-20.1(a)(6) (West 2014)) and sentenced to three years' probation. On appeal, he contends that the trial court erred in denying his motion to suppress evidence that he alleged was obtained by the abuse of the grand jury's subpoena power. We affirm.

         ¶ 2 On April 2, 2014, defendant was indicted on seven counts of child pornography, each alleging that, on or about March 6, 2014, he had knowingly possessed a pornographic image of a child on his home computer. On April 1, 2015, he moved to suppress evidence that the police obtained by searching his home on March 6, 2014.

         ¶ 3 The motion alleged as follows. On January 8, 2014, Christopher Covelli of the Lake County sheriff's department issued a "grand jury subpoena" to AT&T Internet Services (AT&T). It stated in part, "You must comply with this request by sending legible copies to ATTN: Detective Covelli, Lake County Sheriff's Office, 25 S. Martin Luther King Jr. Ave., Waukegan, IL." It warned that the failure to comply might result in punishment for contempt of court. Covelli also gave AT&T his e-mail address. On January 20, 2014, AT&T returned the requested documents directly to Covelli. Covelli was not an attorney and had not been working at the direction of the grand jury. When the subpoena was issued, there was no grand jury convened to investigate defendant. The grand jury never reviewed the documents.

         ¶ 4 The motion alleged further as follows. On March 5, 2014, Covelli used the documents to obtain a warrant to search defendant's home. The warrant was executed the next day. Covelli had used the improper subpoena to conduct an investigation of his own outside the control or consultation of the grand jury. His methods were improper under this court's decision in People v. DeLaire, 240 Ill.App.3d 1012 (1993), in which we held that a police detective had improperly received and exploited private information that the grand jury had subpoenaed.

         ¶ 5 Further, the motion contended, the State's Attorney's office had failed to follow the procedure outlined in section 115-7(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7(b) (West 2014)) for investigations of the possible sexual exploitation of children: instead of directing a subpoena to AT&T, returnable to the chief judge of the circuit court, the State's Attorney's office had "stamp[ed] 'Grand Jury Subpoena' on a document and then NEVER return[ed] the documents to the Grand Jury (or a magistrate)." The motion alleged that the State's use of the subpoena to obtain a search warrant violated the fourth amendment and the Illinois Constitution. Finally, the defendant asserted that, because two months elapsed between Covelli's issuance of the subpoena and the search, the information that was provided for the warrant had become stale, requiring suppression on that ground as well.

         ¶ 6 The motion attached a copy of the subpoena. It was headed "Grand Jury" and directed to AT&T's office in San Antonio, Texas. It commanded AT&T to give evidence "concerning a certain complaint made before said Grand Jury, against "AN INVESTIGATION BY DETECTIVE CHRIS COVELLI OF THE LAKE COUNTY SHERIFF'S OFFICE." The evidence was "Any/All subscriber information including terminated information for the AT&T IP [(Internet protocol)] Address of: Including but not limited to names, including names of account holders, physical address of where account was established, physical address of service location, usernames [sic], associated email addresses, phone numbers, linked accounts, account creation/deactivation dates and I.P. Logs for 1/6/14-1/8/14."

         ¶ 7 On April 22, 2015, the trial court held a hearing on defendant's motion. Defendant called Covelli, who testified on direct examination as follows. In January 2014, he was a detective in the sheriff's department, working in the cyber crime section. On the evening of January 7, while he was working undercover on a computer used for investigations, "a specific [IP] address *** shar[ed] child pornography with [Covelli]." The computer that the IP address represented connected directly to Covelli's and provided pornographic images at his request. As soon as it did so, Covelli could see its IP address. An IP address does not identify a computer's physical location. Covelli next consulted the American Registry of Internet Numbers (ARIN), which lists Internet Service Providers (ISPs) for IP addresses. The list does not have subscriber information, which is held by the ISPs. The sending computer's ISP was AT&T.

         ¶ 8 Covelli testified that, later in January, he went to the State's Attorney's office "regarding a Grand Jury subpoena to be issued." He and Carol Gulbrandson, a paralegal in the State's Attorney's office, discussed drafting the subpoena. He did not know whether Gulbrandson had anyone else in the State's Attorney's office review the draft subpoena or whether she had been in contact with the grand jury.

         ¶ 9 Covelli testified that, before sending out the subpoena, he did not speak to anyone on the grand jury or, indeed, to anyone other than Gulbrandson. He did not seek a court order. Covelli faxed the subpoena to AT&T. AT&T responded by e-mail in approximately 12 days. When Covelli received the documents, he printed them out and placed them into the case file.

         ¶ 10 Covelli further testified that the subpoenaed documents gave him the physical address of the computer that had sent him the suspected child pornography. He spoke to the State's Attorney's office about the investigation, disclosing the address. Covelli did not do this at the request of the grand jury. Before seeking a search warrant, he did not disclose any of the subpoenaed documents to the State's Attorney's office or to the grand jury.

         ¶ 11 Covelli testified that, on March 5, 2014, he filled out a complaint for a search warrant. Before presenting it to a judge, he reviewed the complaint with Assistant State's Attorney Mary Stanton but not with anyone from the grand jury. A judge issued a warrant on March 5, 2014. Eventually, defendant's residence was searched; based on what was found, and his statement, he was arrested. Before testifying to the April 2014 grand jury, Covelli had never consulted with any member of the grand jury or taken any direction from it.

         ¶ 12 Covelli testified on cross-examination as follows. He was familiar with grand jury procedures in Lake County and knew that, in a given term, there is a list of appointed investigators for the grand jury. Covelli was on the list for the December 2013 and April 2014 terms. The trial court admitted the lists for these terms, as well as the orders appointing Covelli and others. The orders stated that the grand jury had petitioned to make 488 Lake County law-enforcement officers investigators and that they all "ha[d] been authorized by the Grand Jury and [were] authorized by the court to issue subpoenas for investigative matters to be heard by the Lake County Grand Jury, to receive materials and documents pursuant to those subpoenas, and to provide those documents to the State's Attorney or his Assistants for enforcement of the laws of the State of Illinois."

         ¶ 13 Covelli testified that, when he consulted with the State's Attorney's office in preparation for obtaining the search warrant, he discussed whether the images were child pornography under Illinois law, how he had traced them to defendant, and the return from AT&T on the subpoena. On March 5, 2014, he presented the information about the IP address to the judge. Covelli identified a transcript of the grand jury proceedings of April 2, 2014, and testified that, on that date, he told the grand jury about the return on the subpoena. The court admitted the transcript. After defendant was indicted, Covelli sought no more grand jury subpoenas in this case.

         ¶ 14 Covelli testified on redirect examination that, between January 7 and April 2014, he did not tell anyone in the sheriff's department the details of his investigation, but "[i]t was known [that he] was investigating." He had not asked to be appointed a grand jury investigator for the December 2013 term. Asked how he had learned of his appointment, he testified, "Stanton said there is a list compiled quarterly of Grand Jury investigators. Our agency is investigators. That is one of the responsibilities of being a detective with the Sheriff." Covelli had never seen the list. On January 7, 2014, however, he was aware that he was a grand jury investigator.

         ¶ 15 In closing argument, defendant contended that Covelli had tried to circumvent the fourth amendment in that "[h]e sent a warrant to AT&T without running it by a judge, without running it by a Grand Jury." Unlike a subpoena duces tecum, the one that Covelli sent was not returnable to a court and did not provide notice to defendant. An administrative subpoena, which Covelli could have sought through the State's Attorney's office, would have been returnable to a court, which could have given notice to other parties. These two types of subpoena, as well as one authorized by a grand jury, would have imposed a "neutral authority" to "check the police." This protection was absent here, although defendant had a strong fourth amendment interest at stake.

         ¶ 16 Defendant contended that this court's opinion in DeLaire prohibited this circumvention of the fourth amendment and the Illinois Constitution's right of privacy. Covelli had not been "an actual investigator appointed by the Grand Jury, " had not acted under its direction, and had not been subject to the independent review that DeLaire required. He had been named an investigator in response to a petition to appoint 488 law-enforcement officers in Lake County to that post. "[E]very possible investigator [was] appointed as a Grand Jury investigator, " a pro forma act that negated the role of the grand jury as an independent check on the police. Covelli did not once talk to a grand juror. No judge had approved the subpoena. Yet AT&T had been told that it must comply, under the threat of contempt. The documents were sent directly to Covelli, because the subpoena had not been made returnable to the grand jury or the court. Also, the subpoena was invalid because Covelli had failed to request or receive the grand jury's approval to issue it.

         ¶ 17 The State responded as follows. In DeLaire, one of the subpoenas was issued after the defendant had been indicted, a problem not present here. More important, however, in DeLaire, the police detective had not been appointed as a grand jury investigator; here, Covelli had been duly appointed to that post, with the subpoena power included. That numerous law-enforcement officers received similar appointments did not make the process a sham, as defendant contended.

         ¶ 18 Defendant replied as follows. He had a privacy interest in the physical address associated with his computer's IP address. When Covelli subpoenaed AT&T, the grand jury was not investigating defendant or anyone else at his physical address. Yet Covelli told AT&T that it was required to release defendant's subscriber information.

         ¶ 19 The trial court denied defendant's motion to suppress, reasoning as follows. The disclosure of defendant's subscriber information implicated his state constitutional right to privacy. Defendant had attacked the issuance of the subpoena and its return and use. The court held that the subpoena could be issued even without any specific prior authorization by the grand jury. The statutory and case law imposed no such requirement, and DeLaire had actually stated that a prosecutor may have subpoenas issued without the grand jury's advance authorization, although the purpose must be to produce evidence for the grand jury's use. See DeLaire, 240 Ill.App.3d at 1023. The court also distinguished DeLaire in that there the police detective had never been appointed as a grand jury ...

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