from the Circuit Court of Lake County, Nos. 14-CF-2567,
14-CF-2964, 14-CF-2971, 14-CF-2973, 14-CF-2975, 14-CF-3191;
Review the Hon. George D. Strickland, Judge, presiding.
Michael G. Nerheim, State's Attorney, of Waukegan
(Patrick Delfino, Lawrence M. Bauer, Richard S. London, and
Stephanie H. Lee, of Appeal State's Attorneys Appellate
Prosecutor's Office, of counsel), for the People.
Richard Dvorak and Christopher A. Tinsley, of Dvorak Law
Offices, LLC, of Willowbrook, for appellee James Allard.
Michael J. Pelletier, Thomas A. Lilien, and Sherry R.
Silvern, of State Appellate Defender's Office, of Elgin,
for other appellees.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Zenoff
concurred in the judgment and opinion.
1 As part of an investigation into gang activity, the Lake
County State's Attorney's Office obtained
authorization to intercept private communications involving
certain telephone numbers. The circuit court of Lake County
authorized the nonconsensual electronic surveillance,
pursuant to article 108B of the Code of Criminal Procedure of
1963 (Code of Criminal Procedure) (725 ILCS 5/108B (West
2014)), based on applications signed and presented by two
assistant state's attorneys (ASAs), not by the elected
state's attorney (SA).
2 Defendants were charged with various offenses, and they
learned that the State intended to introduce at trial certain
evidence arising from the wiretaps. Defendants joined in a
motion to suppress the evidence, arguing that the SA's
failure to personally apply for the wiretap orders violated
article 108B as well as the federal wiretap statute set forth
in Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better
known as "Title III." The trial court suppressed
the evidence, ruling that Title III preempts article 108B and
does not authorize an ASA to apply for a wiretap order.
3 On appeal from the suppression orders, the State argues
that the SA complied with the Illinois and federal wiretap
statutes in delegating to the ASAs the authority to apply for
the wiretap orders. The State alternatively contends that,
even if the orders were not supported by proper applications,
the evidence is admissible because the prosecution acted in
good faith. Further, the State asserts that any new rule
regarding who may submit a wiretap application should apply
4 We affirm the trial court's suppression of the evidence
derived from the wiretaps on the ground that the SA's
office simply failed to comply with article 108B of the Code
of Criminal Procedure. The good-faith exception does not
apply because the error was caused by law enforcement.
Further, any consideration of a retroactive or prospective
application of our holding would be premature. We need not
address the remaining issues raised by the parties, including
whether article 108B is impermissibly broader than Title III.
5 I. BACKGROUND
6 A. The Applications
7 Between May 2014 and September 2014, ASA Reginald Mathews,
chief of the gang and narcotics prosecution division of the
Lake County State's Attorney's Office, and, in one
instance, ASA Ari P. Fisz, chief of the felony trial division
of the Lake County State's Attorney's Office, signed
and presented applications to the circuit court of Lake
County. The applications requested orders and extension
orders for nonconsensual telephone interceptions related to a
law enforcement investigation involving a street gang known
to investigators as the Four Corner Hustler Drug Trafficking
Organization (the gang). The investigation was being
conducted by the Federal Bureau of Investigation (FBI); the
Lake County Metropolitan Enforcement Group; and the police
departments of Waukegan, North Chicago, and Zion. The goal of
the investigation was to obtain evidence to prosecute
individuals who were trafficking cocaine and heroin in and
around Lake County.
8 The applications for wiretap orders targeted specific cell
phone numbers that, according to the supporting affidavits,
the investigation had linked to defendants. Each application
was supported by an affidavit from an investigator, and each
stated that it was submitted "on behalf of Michael G.
Nerheim, State's Attorney of Lake County." The
orders approving the wiretaps were signed by Judge Victoria
Rossetti, presiding judge of the criminal division of the
circuit court of Lake County, except for one extension order
that was signed by Judge Daniel Shanes of the Lake County
9 Consistent with the applications, each order noted that the
application was made, under oath, by either ASA Mathews or,
in one instance, ASA Fisz, "on behalf of Michael G.
Nerheim, State's Attorney of Lake County." The
orders stated that they were entered pursuant to article 108B
of the Code of Criminal Procedure.
10 Section 108B-2 governs "[r]equest[s] for application
for interception." 725 ILCS 5/108B-2 (West 2014). The
statute provides that "[a] State's Attorney may
apply for an order authorizing interception of private
communications in accordance with the provisions of this
Article." (Emphasis added.) 725 ILCS 5/108B-2(a)
(West 2014). In turn, section 108B-3(b) provides that
"[t]he State's Attorney or a person designated
in writing or by law to act for the State's Attorney and
to perform his or her duties during his or her absence or
disability, may authorize, in writing, an ex
parte application to the chief judge of a circuit court
for an order authorizing the interception of a private
communication when no party has consented to the interception
and the interception may provide evidence of, or may assist
in the apprehension of a person who has committed, is
committing or is about to commit, a violation of an offense
under Article 29D of the Criminal Code of 1961 or the
Criminal Code of 2012." (Emphasis added.) 725 ILCS
5/108B-3(b) (West 2014).
11 B. Motions to Suppress
12 On November 19, 2014, defendants were indicted for
racketeering conspiracy, racketeering, criminal drug
conspiracy, street gang criminal drug conspiracy, controlled
substances trafficking, and unlawful possession of a
controlled substance with the intent to deliver. On October
28, 2015, defendants were indicted for additional counts of
criminal drug conspiracy and street gang criminal drug
13 On February 22, 2016, defendants moved to suppress
evidence that had been obtained pursuant to the wiretap
orders. Defendants' motion argued that, pursuant to
Illinois and federal law, an application for a wiretap order
must be personally authorized, in writing, by the elected SA,
in this case SA Nerheim, or a person designated by the SA in
writing or authorized by law to act for him in his absence.
Defendants asserted that neither ASA Mathews nor ASA Fisz was
so authorized and that, therefore, the orders entered
pursuant to the applications were invalid. On April 26, 2016,
the State responded that ASAs Mathews and Fisz were properly
authorized to act on behalf of SA Nerheim for the purpose of
submitting the applications under article 108B. Specifically,
the State submitted a letter, on the SA's office
letterhead, that was dated July 10, 2013, and signed by SA
Nerheim. The letter stated that SA Nerheim granted ASA
Mathews "my authorization for the interception of
private communication pursuant to the requirements as set
forth in [section 108B-3]."
14 The parties argued the suppression motion at a hearing on
July 28, 2016. On September 26, 2016, before the trial court
ruled on the motion, the State filed affidavits from SA
Nerheim and ASA Mathews that outlined the application process
in these cases. The affidavits described a January 2014
meeting regarding the investigation of drug offenses and
violent crimes by the gang. At the meeting, ASA Mathews and
FBI agents informed SA Nerheim of the need for wiretap orders
to further the investigation. Based on this information, SA
Nerheim authorized ASA Mathews to apply for the requested
orders under article 108B. The affidavits also stated that,
from January 2014 to October 2014, ASA Mathews kept SA
Nerheim apprised of the progress and developments of the
investigation, including each request for additional wiretap
orders. SA Nerheim averred that he was involved in the
decision-making process throughout the investigation.
15 ASA Mathews also averred that, during the week of August
4, 2014, he was contacted by an FBI agent who advised him
that the investigation had revealed that one of the
defendants was using an additional specified cell phone
number to commit the offenses at issue. Because he was out of
town, ASA Mathews asked ASA Fisz to prepare a wiretap
application for ...