People v. Bockman

Case Date: 03/14/2002
Court: 2nd District Appellate
Docket No: 2-00-1309 Rel

No. 2--00--1309


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT




THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
            Plaintiff-Appellant, )
) No. 00--CF--137
v. )
)
ROBERT BOCKMAN, ) Honorable
) Douglas R. Engel,
             Defendant-Appellee. ) Judge, Presiding.

 


JUSTICE CALLUM delivered the opinion of the court:

The State charged defendant, Robert Bockman, with two countsof burglary (720 ILCS 5/19--1(a) (West 2000)). Defendant moved tosuppress evidence that consisted of recordings of certainconversations. The trial court granted the motion afterdetermining that the applications for authority to use aneavesdropping device to overhear and record the conversations weredeficient. The State appeals and contends that the applicationswere not deficient. Alternatively, the State contends that, evenif the applications were deficient, it was error to suppress therecordings because the police acted in good-faith reliance on theorders that authorized the use of the eavesdropping device. Weaffirm.

We initially note that defendant has not filed an appellee'sbrief in this court. However, we will consider the merits of theappeal under First Capitol Mortgage Corp. v. Talandis ConstructionCorp., 63 Ill. 2d 128, 133 (1976).

On February 9, 2000, Robert Redel, a De Kalb police detective,submitted an application (application No. 1) to Judge Douglas R.Engel for authority to use an eavesdropping device. ApplicationNo. 1 sought authority to use the device from 4 p.m. on February 9,2000, through 3:59 p.m. on February 19, 2000.

Application No. 1 included a detailed description of a reportof a burglary Mark Wolff allegedly gave to the De Kalb police onFebruary 8, 2000. Application No. 1 indicated that Wolff told thepolice that the burglary had occurred about a week and a halfearlier and that Wolff had committed the burglary with Jerry Cookand defendant. Application No. 1 also indicated that Wolff toldthe police about another burglary that occurred on January 30,2000, and that, based on Wolff's description of the burglaries, Redel believed that a felony had been committed.

In addition to describing the burglaries, application No. 1indicated that Redel had been authorized by the De Kalb CountyState's Attorney to apply to a judge for authority to use aneavesdropping device and that a copy of the State's Attorney'sauthorization was attached to application No. 1. Application No.1 stated that the State's Attorney's authorization was "made a parthereof as Exhibit A."

Exhibit A was signed by an assistant State's Attorney. Exhibit A stated that Redel had been authorized to apply to a judgeto use an eavesdropping device during the times indicated onApplication No. 1 "to overhear (and record) a conversation orconversations occurring between MARK A. WOLFF consenting party, andROBERT A. BOCKMAN AND JERRY COOK."

On February 9, 2000, Judge Engel issued an order (order No. 1)authorizing Redel and the De Kalb police department to use aneavesdropping device to overhear and record conversations amongWolff, Cook, and defendant during the period indicated inapplication No. 1. Order No. 1 stated that there was reasonablecause to believe that defendant and Cook had committed a Class 2felony burglary and that conversations concerning the felony wouldbe obtained through the use of the eavesdropping device. The orderspecified that Wolff consented to the use of the device.

On February 24, 2000, Redel submitted another application(application No. 2) to Judge Engel for authority to use aneavesdropping device. Application No. 2 was virtually identical toapplication No. 1 with respect to the description of the burglariesand the parties involved in the burglaries. However, applicationNo. 2 was different in that it indicated that it was an applicationfor an extension of a previous order, and it sought the authorityto use the eavesdropping device from 4 p.m. on February 24, 2000,through 3:59 p.m. on March 4, 2000.

Like application No. 1, application No. 2 referred to a copyof a State's Attorney's authorization to apply to a judge for anorder authorizing the use of an eavesdropping device and statedthat the State's Attorney's authorization was attached toapplication No. 2 as Exhibit A. The State's Attorney'sauthorization attached to application No. 2 contained the sameinformation as the State's Attorney's authorization attached toapplication No. 1. Application No. 2 incorporated Exhibit A as apart of the application.

On February 24, 2000, Judge Engel issued an order (order No.2) authorizing Redel and the De Kalb police department to use aneavesdropping device for the period specified in application No. 2. Like order No. 1, order No. 2 authorized the use of aneavesdropping device to record conversations among Wolff, Cook, anddefendant and identified Wolff as the consenting person. Order No.2 also stated that there was reasonable cause to believe thatdefendant and Cook had committed a Class 2 felony burglary and thatconversations concerning the felony would be obtained through theuse of the device.

On March 9, 2000, defendant was charged by complaint with two counts of burglary. The State later charged defendant byinformation. Defendant moved to suppress evidence. The motionsought to suppress conversations between defendant and Wolff thatwere recorded during the periods specified in orders No. 1 and No.2.

At a hearing on the motion, defendant argued that bothapplication No. 1 and application No. 2 were not completed in fullcompliance with the governing statutes. Defendant first assertedthat the applications did not comply with sections 108A--3(2)(b),108A--3(2)(c), and 108A--3(2)(d) of the Code of Criminal Procedureof 1963 (Code) (725 IlCS 5/108A--3(2)(b) through (d) (West 2000)). These sections provide that each application for an orderauthorizing the use of an eavesdropping device shall include:

"(b) a description of the type of communication sought tobe monitored; (c) the identity of the party to the expectedconversation consenting to the use of an eavesdropping device;(d) the identity of the person, if known, whose conversationsare to be overheard by the eavesdropping device." 725 ILCS5/108A--3(2)(b) through (d) (West 2000).

Defendant also argued that the applications were deficientbecause they did not include facts to establish reasonable cause tobelieve that conversations would occur relating to the felonies. To support this argument, defendant cited section 108A--4 of theCode, which provides, in relevant part:

"The judge may authorize or approve the use of theeavesdropping device where it is found that: ***

(b) there is reasonable cause for believing that anindividual is committing, has committed, or is about to commita felony under Illinois law;

(c) there is reasonable cause for believing thatparticular conversations concerning that felony offense willbe obtained through such use." 725 ILCS 5/108A--4(b), (c)(West 2000).

With respect only to application No. 2, defendant also arguedthat the application was deficient because it failed to comply withsections 108A--3(4) and 108A--3(5) of the Code (725 ILCS 5/108A--3(4), (5) (West 2000)). These sections provide that eachapplication to use an eavesdropping device shall include:

"(4) a statement of the existence of all previousapplications known to the individual making the applicationwhich have been made to any judge requesting permission to usean eavesdropping device involving the same persons in thepresent application, and the action taken by the judge on theprevious applications;

(5) when the application is for an extension of an order,a statement setting forth the results so far obtained from theuse of the eavesdropping device or an explanation of thefailure to obtain such results." 725 ILCS 5/108A--3(4), (5)(West 2000).

Following the hearing, Judge Engel, the same judge who issuedorders No. 1 and No. 2, took the matter under advisement. JudgeEngel subsequently suppressed the recordings, ruling that "theexact letter of the law was not followed in obtaining theeavesdropping order." The State's timely notice of appeal andcertificate of impairment followed.

On appeal, the State contends that applications for authorityto use an eavesdropping device should be read in a commonsensemanner and that, when the applications in this case are so read,they complied with the letter and spirit of the governing statutes. In the State's view, Judge Engel improperly second-guessed hisdecisions to issue orders No. 1 and No. 2, and his originaldecisions to approve the applications should stand. Alternatively,the State contends that, even if the applications were deficient,the recordings should not have been suppressed because the policerelied in good faith on the orders authorizing the use of theeavesdropping device.

Generally, when a motion to suppress evidence involves factualdeterminations or credibility assessments, a reviewing court willnot reverse a trial court's ruling unless it was manifestlyerroneous. People v. Buss, 187 Ill. 2d 144, 204 (1999). However,where, as here, the facts are not in dispute and the credibility ofthe witnesses is not at issue, our review is de novo. People v.Anthony, 198 Ill. 2d 194, 201 (2001).

This case involves a situation where one party to a recordedconversation purportedly consented to the use of an eavesdroppingdevice. The restrictions placed on the use of an eavesdroppingdevice in such situations are statutory. People v. Sylvester, 86Ill. App. 3d 186, 190 (1980). Because Illinois citizens areentitled to be safeguarded from unnecessary governmentalsurveillance and other unreasonable intrusions into their privacy,the statutory restraints on eavesdropping must be strictlyconstrued with respect to all requests and consents for theauthority to use an eavesdropping device. People v. Monoson, 75Ill. App. 3d 1, 5 (1979). This court has recently reiterated theneed to strictly construe statutes governing the use of aneavesdropping device. People v. Nunez, 325 Ill. App. 3d 35, 45(2001).

In applying these principles to this case, we agree with theState's argument that both applications provided sufficientinformation to comply with sections 108A--3(2)(b), 108A--3(2)(c),and 108A--3(2)(d) of the Code (725 ILCS 5/108A--3(2)(b) through (d)(West 2000)). Each application referred to an attached State'sAttorney's authorization that was expressly made a part of theapplication. The trial court therefore should have considered each State's Attorney's authorization to be a part of the application towhich it was attached. The State's Attorney's authorizationsprovided information sufficient to satisfy the requirements inquestion by describing the type of communications to be monitored(a conversation or conversations), by identifying the consentingparty (Wolff), and by identifying the persons whose conversationswere to be overheard (Cook and defendant).

However, we disagree with the State's argument that theapplications contained facts sufficient to establish a reasonablebelief that conversations concerning the described felony would beobtained through the use of the eavesdropping device. We realizethat this requirement is not in section 108A--3 of the Code (725ILCS 5/108A--3 (West 2000)), the section that addresses therequirements for applications to use an eavesdropping device. Rather, it is in section 108A--4(c) of the Code (725 ILCS 5/108A--4(c) (West 2000)). Nonetheless, it is properly deemed arequirement in an application (see People v. Ellis, 122 Ill. App.3d 900, 902-03 (1984)).

Here, neither the applications themselves nor the attachedState's Attorney's authorizations contained anything that could beconstrued as a factual basis sufficient to establish a reasonablebelief that conversations regarding the alleged felonies would beobtained through the use of the proposed eavesdropping device. Forthis reason, we conclude that the trial court correctly determinedthat both of the applications were deficient.

We also disagree with the State's argument that applicationNo. 2 satisfied the requirements for an application for anextension of the use of an eavesdropping device under sections108A--3(4) and 108A--3(5) of the Code (725 ILCS 5/108A--3(4), (5)(West 2000)). Application No. 2 indicated that there had been aprevious application for the use of an eavesdropping deviceinvolving the same persons and that application No. 2 was for anextension of a previous order authorizing the use of aneavesdropping device. Therefore, application No. 2 may havecomplied with section 108A--3(4) in a general sense. However,application No. 2 contained nothing that could reasonably beconstrued as a "statement setting forth the results so far obtainedfrom the use of the eavesdropping device or an explanation of thefailure to obtain such results" as is required by section 108A--3(5) (725 ILCS 5/108A--3(5) (West 2000)). Thus, in addition to itsdeficiency for failing to contain facts sufficient to establish reasonable cause to believe that conversations would be obtainedconcerning the alleged felony, application No. 2 was also deficientbecause it failed to comply with section 108A--3(5).

The State's reliance on People v. Manuel, 294 Ill. App. 3d 113(1997), People v. Ellis, 122 Ill. App. 3d 900 (1984), and People v.Scribner, 108 Ill. App. 3d 1138 (1982), as authority for theprinciple that applications should be read in a commonsense manner,does not change our conclusions. In each of those cases, the courtwas able to determine from the totality of the circumstances or insome other way that the State had met the requirements for anapplication for authority to use an eavesdropping device. In thiscase, there simply is nothing in the record that shows that themandatory requirements in question were satisfied.

We recognize that, at the hearing on the motion to suppress,the State sought to present additional evidence that might showthat the requirements had been satisfied through Judge Engel'squestioning of Redel. However, the State made no offer of proofindicating what the evidence might be. Thus, the record containsnothing that supports the State's position.

Alternatively, the State contends that, even if theapplications were deficient, it was error to suppress therecordings because the officers who used the eavesdropping devicedid so in good-faith reliance on orders No. 1 and No. 2. Tosupport this contention, the State relies on United States v.Moore, 41 F.3d 370 (1994).

In Moore, law enforcement officials applied to a judge for anorder authorizing the use of a wiretap. The application satisfiedall of the statutory requirements, and the judge signed an orderauthorizing the use of the wiretap. A police officer asked thejudge for a copy of the signed order but was inadvertently given anunsigned copy. The United States Court of Appeals agreed with thedistrict court that the unsigned order was facially insufficient,but decided against suppressing the evidence obtained through thewiretap because the police officer acted in good-faith reliance onthe fact that the otherwise valid order had been signed by thejudge. Moore, 41 F.3d at 376-77.

In this case, unlike in Moore, the record indicates that themandatory statutory requirements for an application to use aneavesdropping device were not fulfilled. In addition, nothing inthe record shows that Redel could have concluded in good faith thatthe statutory requirements had been satisfied. Therefore, weconclude that the good-faith exception to the exclusionary ruledoes not apply here.

Based on the foregoing, the judgment of the circuit court ofDe Kalb County is affirmed.

Affirmed.

HUTCHINSON, P.J., and GEIGER, J., concur.